Oct 15, 2020
About Our Host
Casey Handy-Smith is a contract
law attorney who helps influencers and creative entrepreneurs who
struggle with navigating the legal side of their online businesses
and brands. Over the past 6 years, Casey has helped creatives
negotiate fair deals while protecting and leveraging their creative
assets with ironclad contracts. Beyond her work with 1-on-1 with
clients, Casey also provides DIY contract templates for
entrepreneurs needing instant clarity and confidence to legally
protect their businesses.
4 Key Takeaways
Publicity Rights can be tricky, which is why it is important to
consider all possibilities when drafting and negotiating the
contract at the beginning of the working relationship. Thinking
about all eventualities and putting provisions and terms into the
contract at the start can help you avoid situations like this in
the long run.
Know your rights! I say this all the time, but you have to know the
rights you hold when in various situations. In this case, it’s good
to know that the law can be loose surrounding publicity rights, so
that is why writing the terms into the contract is key.
Know your role! Are you an employee subject to a work for hire or a
contractor that needs to negotiate a usage clause?
Remember that to make this claim, many states require that you have
already commercially exploited your identity to make this claim.
So, again, make sure you have a good contract and you keep the
Background of the Situation
Melendez, longtime Howard Stern Show personality “Stuttering John"
is suing SiriusXM Radio for using his archived hot-button
interviews with the likes of the Dalai Lama, Ringo Starr, and Mike
Tyson without compensation and in violation of his publicity
Understanding Publicity Rights
right of publicity is generally defined as an individual's right to
control and profit from the commercial use of his/her name,
likeness, and persona. The purpose of this law is to protect the
individual from the loss of commercial value resulting from the
unauthorized appropriation of their identity for commercial
important to know that there is no uniform federal law for the
right of publicity despite increasing demands for such a
Specifics of this case
- According to the complaint, Sirius acquired a
license to not only current episodes of the show but also to air
full or partial episodes from the archives. Melendez argues that
it’s disregarding his right of publicity by using his identity,
likeness, name, image, and voice for its commercial
- Disputes like this are relatively common in the
sports world, and typically haven’t ended in favor of the talent.
The NFL in 2014 beat a suit from ex-players over the use of their
likenesses in video footage, in part because the court found "brand
enhancement alone is not sufficient to render a production
advertising as a matter of law" and ruled the projects were
protected by the First Amendment.
disputes may serve as a roadmap and it’s likely Melendez’s case
could turn on whether or not a New York federal judge considers any
of Sirius’ use to be advertising.
[16:00] – Key
- Publicity Rights can be tricky, which is why it
is important to consider all possibilities when drafting and
negotiating the contract at the beginning of the working
your role! Are you an employee subject to a work for hire or a
contractor that needs to negotiate a usage
- Remember that to make this claim, many states
require that you have already commercially exploited your identity
to make this claim.