The first type of claim is the violation of privacy by misappropriation of name or image. The second is the violation of the right to the public. The right to publicity is the right of a person to control the commercial use of his or her identity and to earn money. You cannot enter the privacy of a deceased person, so you generally cannot be prosecuted for misappropriation of the name or image of a deceased person, unless the misappropriation took place before the death of the person in question. However, in many states, the right to publicity arises after death, so you could be sued for violating a deceased person`s rights of publicity. This will most likely come with dead celebrities. The law doesn`t know if sites like these actually violate the publicity or personality rights of their idols. Probably the best legal arguments for fan sites are that they provide «messages» about the celebrities involved and that their use of the celebrity`s name or image is not commercial or otherwise exploited (this argument may be stronger if the site does not host any ads). These sites should avoid selling items such as t-shirts or coffee mugs adorned with the name or image of their respective celebrities. Ultimately, we will have to wait for further guidance from the courts on these issues. A third defense is the use of names or images for posts or comments. As a general rule, a defendant is not liable for the use of a person`s name, image or other personal characteristics in connection with the public interest statement.
The law also protects other personal attributes or aspects of identity from unauthorized use. For example, the courts have ruled that the use of a celebrity`s voice may violate the right to the public. See z.B. Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988). A court has convicted an accused for using the slogan «Here`s Johnny» as a brand name for the portable toilet, because it sufficiently sparked Johnny Carson`s identity. See Carson v. Here Johnny Portable Toilets, Inc., 698 F.2d 831 (6th Cir. 1983). In other examples, the courts have held the defendants liable for the use of a photo of the applicant`s race car in a television advertisement, see Motschenbacher v. R.J.
Reynolds Tobacco Co., 498 F.2d 821 (9th Cir. 1974) and the creation of a commercial with a Van White-like robot posing next to a Wheel of Fortune game. See White v. Samsung Elec. Am., Inc., 917 F.2d 1395 (9th Cir. 1992).