Make a website using the name of a famous person?
Example, I do not believe I can make a site called www.JayLeno.com, because it is illegal. I want to write a research paper on this law, but don't know how to find it. Is it intellectual property, Internet, or something else. Thanks.
This question is confined to legal issues arising from using the domain name of someone else.
- 9 years agoFavorite Answer
Using a person's image or likeness is a tort and possibly a crime in many states. The idea is that a person has an economic right over the use of their name, image, or likeness.
There is only one Supreme Court case on this (a Supreme Court case is important because it creates a national standard that all states have to follow): Zacchini v. Scripps-Howard Broadcasting Co.
In Zacchini, the Supreme Court ruled that a TV station that aired the ENTIRE cannonball routine of a circus performer was in violation of the person's economic rights in himself, which are similar to copyright and property law (unfortunately the court was not very clear as to what those rights really are). The reasoning was that because the entire routine was broadcast, people would be discouraged from seeing the actual live performance, and this in effect amounted to infringing on a right to one's own image.
The case did not say that a state cannot protect the freedom of the press (here the defendant was a member of the press). Most states protect their press by state laws that make exceptions to use by the press:
for example, you cannot use the image of a famous person (without their permission) and make money from it. But you can report about a famous person in a newspaper or online because there is a 1. first amendment right of free speech/press and 2. the interest of free speech is greater than the economic right of the person (usually celebrity) who claims he or she is harmed. It is a very high burden for a government to meet to prohibit free speech.
However, there can be exceptions.
For example, if I say "Jay Leno is a murderer, I saw him kill someone years ago, he should be given a death sentence." I have committed a tort of defamation. I am not protected here because I have made and published a damaging statement about Jay Leno, and it is both false and done with malice (reckless disregard for the truth). Even if I said this in a newspaper, I couldn't claim I have a first amendment right or that this is protected by the rights of the press. (although note: in actions between private parties, there are usually no constitutional issues, as the constitution generally refers to state and federal governments).
Keep in mind that most of these things are in "tort" law and not criminal law. Tort law is private, civil law. You don't get sent to jail for defamation- you just get sued. So if you use Jay Leno's name, no one will send you to jail.
An important law you might wish to look up is the "Anti-Cybersquatting" provision of the Lanham Act, part of which states:
"Any person who registers a domain name that consists of the name of another living person, or a name substantially and confusingly similar thereto, without that person's consent, with the specific intent to profit from such name by selling the domain name for financial gain to that person or any third party, shall be liable in a civil action by such person."
The key language here is
-"name of another living person" (must be alive) (or confusingly similar)
-specific intent to profit from the name
-by selling the domain name for financial gain
Let's break that down:
Has to be a living person. You have to have specific intent. What is specific intent? Means you must know that the act is illegal and to intend to commit the act. It is beyond simply knowing of the law. You intend to do it.
-you intend to make a profit by SELLING the domain name (i.e. you do it for money)
-and you can get sued. Notice, no criminal liability (because this is a free speech issue, it is a private matter, not a state or federal criminal matter).
The Lanham Act also protects one's name where that name is trademarked:
A person shall be liable in a civil action by the owner of a mark, including a personal name which is protected as a mark under this section, if, without regard to the goods or services of the parties, that person -
(i) has a bad faith intent to profit from that mark, including a personal name which is protected as a mark under this section; and
(ii) registers, traffics in, or uses a domain name that -
(I) in the case of a mark that is distinctive at the time of registration of the domain name, is identical or confusingly similar to that mark;
(II) in the case of a famous mark that is famous at the time of registration of the domain name, is identical or confusingly similar to or dilutive of that mark; or
(III) is a trademark, word, or name protected by reason of section 706 of title 18, United States Code, or section 220506 of title 36, United States Code. 15 U.S.C. § 1125(d)(1)(A).
Key words here:
-trademark, distinctive, similar,
-intends in bad faith to profit
-registers, traffics, or uses (note the difference: you don't have to SELL the domain name, simply using it to make a profit is enough)
-civil action (again, you get sued, not sent to jail)Source(s): http://tcattorney.typepad.com/domainnamedispute/20... http://en.wikipedia.org/wiki/Personality_rights#Un... http://www.irational.org/APD/CCIPS/SectIII.htm
- IsabelLv 79 years ago
This is only one part - have a look at the whole article at the link above
D. Privacy/Publicity Claims
State law also commonly provides for several types of invasion of privacy claims that could be raised by the celebrity; these include "false light" invasion of privacy, unauthorized publication of private facts and unauthorized capitalization on the celebrity's right of publicity. Those claims center around the publication of facts, or depictions of events, that cast the celebrity in an unfavorable light, or attempt to profit on protected publicity rights. A celebrity, him or herself, is most likely to assert those kinds of claims.
All famous individuals have the right to profit from their own image, likeness and popularity. When someone unfairly tries to capitalize on a celebrity's image for their own gain, a claim may be generated. The First Amendment imposes certain boundaries to these sorts of claims, however. For example, legitimate news organizations are entitled to accurately report on newsworthy events involving celebrities without violating these privacy/publicity rights, even if the celebrity's image and likeness appears in the story. What constitutes legitimate news organizations and newsworthy events remain blurry issues.