Personality Rights

The business of music is all about peddling your assets. Among your assets are your songs, your performances, your recordings, and potentially, your actual ass. Seriously: if you are endowed like Jennifer Lopez, your silky hindquarters may be a top marketing tool, which, like your synthetic voice and your catalogue of Euro-hits, needs to be managed and protected.

You may be thinking, "Whatever. We’re not into that whole image thing.” But before you get all indie rock on me, consider that the choice to not have an image is, in fact, your image — and one you have actively cultivated, at that. Every photograph is a manufactured image: the ones you pick to send out to the public speak volumes about what you are trying to communicate about who you are, and what you are selling as an artist. The cover art for your recordings also helps create your image, as do the clothes you wear onstage. Hell, even the brand of instrument you play is a giant clue to your musical identity. Whether you play a Peavey or a Gibson (prog vs. rock’n’roll?) can be a subtle but essential part of how you win yourself an audience.

The right to manage how you are perceived by the music-consuming public is the essence of what are known as "personality rights.” Although these are a relatively new concept in the legal world, in fact the associative marketing power of personality goes back for centuries. Celebrity endorsement has long been understood to have critical sway with the people. For example, when potatoes were first introduced to Europe, people were suspicious of eating them until Marie Antoinette wore a potato blossom in her hair, prompting fawning courtiers to do the same, which in turn prompted landowners to plant potatoes… and the rest is tuber domination. Imagine what she could have done with a pack of Virginia Slims.

Personality rights (also known as publicity rights) generally include the right to manage one’s publicity and to keep one’s personality, image or photo from being commercially exploited without consent or contractual compensation; and the right to privacy — meaning the right to not exploit one’s image at all or to prevent others from exploiting it without permission. As a legal concept, personality rights have been most thoroughly developed and even codified in the Church of Celebrity: the United States. The law is less developed, but still available for civil actions, in Canada and the UK. Because personality rights are generally deemed to be property rights as opposed to personal rights, they can be transferred, licensed, assigned and even form part of a person’s estate. (Personal rights expire with a person and are not commercially transferable.)

Much of the recent law surrounding personality rights has risen from celebrity names and faces being used to imply the endorsement of a product or service. Everyone understands the selling power of celebrity association, and in these days of consumerism-run-amok the commercial has become the political, and vice-versa, which creates a very fine tightrope artists must walk when tempted to throw their image behind a product (or ideology). Being vigilant of their personality rights is the only way artists can ensure they are only selling what they choose to sell, as opposed to what someone else wants to make it look like they are selling.

Recently, Canadian hardcore band Fucked Up, along with 90 other independent artists, found their name listed in a foldout entitled "Indie Rock Universe” in Rolling Stone magazine. The foldout is at first blush a feel-good exercise in which Rolling Stone touts its support of the indie community, and normally, getting any kind of coverage in Rolling Stone would probably be quite welcome. But in this case, the foldout was smack in the middle of a four-page special advertising section for Camel cigarettes. The Camel ad touted its support of the indie community via the so-called "Farm.” The Camel ad’s artwork look and feel flowed into the foldout section, creating the impression that the foldout was part of the ad. You might naturally imagine that the artists in the foldout consented to having their names used in a cigarette ad. Not so, argue Fucked Up. They were never contacted about the foldout and never gave their consent. In December, along with the band Xiu Xiu, Fucked Up launched a class action suit against Camel manufacturer RJ Reynolds and Rolling Stone for infringements under a California statute stated as "unauthorized use of the artists’ names,” "unauthorized use of the artists’ names for commercial purposes” and unfair business practices.

"Many bands work extremely hard and sacrifice a great deal for their music. What they do is identified with their name. No one should be able to pluck that value for free for their own commercial purposes without getting the consent of those who created it. That would seem to be a pretty uncontroversial proposition. And it is also the law,” says Fucked Up’s lawyer Christopher Hunt. "If a band thinks it would benefit by inclusion of their name in an ad, that's entirely their call to make. No one else’s.”

In this case, the complaint states pretty clearly how Fucked Up feels about their name being used to flog cigarettes: "[E]mbarrassment, shock and anger by reason of their apparent endorsement… especially acute for those artists who have taken a public position against reaping commercial profits from the public value of their identity, thereby making them appear to be hypocrites.”

The swift action taken by Fucked Up illustrates how important it is to a hardcore band with a distinct leftist stance not to have its ideals co-opted willy-nilly. But taking action should be important to every artist — even self-avowed embracers of rampant capitalism. The point is, your rights are your rights, and the price of those rights, to paraphrase Tommy Jefferson, is eternal vigilance. And being willing to open the can of legal whoop-ass when necessary.