Publicity Rights vs. Media Law

I’m going to expand on a theme that recurs in my world with depressing frequency: the idea held by many (including many lawyers, who should know better), that the “for profit” nature of a company somehow limits that company’s right to publish information about an individual.

The usual argument is that the publisher – let’s say Avvo in this case – is publishing information about lawyers.  Because Avvo is “profiting off” those directory listings of lawyers, it must get permission from the lawyers involved (and, presumably, share the wealth if such permission is obtained).   1

This argument is a conflation of the publicity rights doctrine (which holds that companies DO have to gain permission from and compensate endorsers) with “Media Law 101” (which holds that everyone – for-profit companies included – has a fundamental First Amendment right to write about other people.

It’s really not very complicated.  If Avvo was to run an ad campaign claiming that “Attorney Brian Tannebaum thinks Avvo is the greatest,” we’d need to get Brian’s permission to do so.  We’d be engaging in commercial speech, and we can’t just appropriate the value of Brian’s publicity for ourselves. 2

But when we create a profile of Brian, and an opinion about him in the form of the Avvo Rating?  That’s not commercial speech, and it’s fully protected by the First Amendment.  We don’t need his permission to publish it.  It is neither commercial nor infringing on his right to monetize his own publicity.

And what of the fact that Avvo makes money from its publishing activities?  After all, we wouldn’t be able to sell ads if we didn’t have those attorney profiles and Avvo Ratings, right?

It doesn’t matter.  At all.

It’s the distinction between co-opting someone’s persona for marketing vs. covering that person in the media.  If it’s the latter – whether an Avvo profile, a feature article in The New York Times or a listing in Google – there is nothing the subject has to say about it.

And that’s precisely how it should be – because as should be obvious by now, we wouldn’t have any media if this wasn’t the case.

Notes:

  1. Avvo does not sell directory listings or charge readers to use the site.  It publishes the information proactively for consumers, and is supported by advertising sales.
  2. Note that publicity rights issues most often come up with respect to celebrities and sports stars who already have a market for their endorsement.  I expect I could get Brian’s endorsement for the price of a bottle of halfway-decent Chateneauf du Pape.

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