Personality Rights in Washington State

For those interested in thinking about the interactions between state property law and federal copyright law, I provide below some background on the 1998 Washington Personality Rights Act, which is taken from the 2008 House Bill Report for HB 2727 (which clarified some aspects of the original act). If you are interested in reading the statutes, they can be found at Chapter 63.60 RCW.

In 1998 the Legislature enacted the Personality Rights Act, which established that every person has a property right in the use of his or her name, voice, signature, photograph, or likeness. The property right is exclusive to the person during his or her lifetime. It may be assigned or licensed while the person is alive. The property right does not expire when the person dies. It may descend in a will or other testamentary transfer, or, if none is available, by the laws of intestate succession. The right exists whether or not it was commercially exploited during the person's lifetime.

The duration of the property right depends upon whether the person's name, voice, signature, photograph, or likeness has commercial value. If it has commercial value, he or she is considered a "personality." Deceased personalities include all such persons who have died since 1948. For deceased personalities, the property right exists for 75 years after death. For deceased individuals not considered personalities, the property right continues for 10 years after the individual dies.

Any person who uses a personality's or individual's name, voice, signature, photograph, or likeness without prior consent infringes on this property right and is liable in an action for damages for the greater of $1,500 or actual damages, plus any profits attributable to the infringement.

There are several exceptions to the use of a person's name, voice, signature, photograph, or likeness. For example, it is not an infringement if the use is:
• in connection with matters of cultural, historical, political, religious, educational, newsworthy, or public interest;
• for purposes of commentary, criticism, satire, or parody;
• in single original works of fine art that are not published in more than five copies;
• in literary, theatrical, or musical works, and any advertisements for those works;
• in a film, radio, television, or online program, or magazine articles; or
• an insignificant or incidental use.