What’s in a Name? A Property Right

This summer, Louisiana joined the large group of states that codify an individual’s right of publicity. On June 15, 2022, Louisiana passed the Allen Toussaint Legacy Act (the “Act”), SB426 Act. 425, which provides that individuals have a property right in connection with their identity when used for commercial purposes. The Act takes effect on August 1, 2022. Previously, Louisiana did not expressly recognize a right of publicity. Now, Louisiana’s new law creates protections against the unauthorized use of an individual’s identity. These protections, however, come with potential repercussions.

Although Louisiana state courts historically recognized an individual’s right to privacy, the courts have explicitly refused to find a right of publicity absent legislative recognition of such a right. Now, Louisiana law provides every individual “a property right in connection with the use of that individual’s identity for commercial purposes.” The Act defines an individual’s identity as his or her (1) name; (2) voice; (3) signature; (4) photograph; (5) image; (6) likeness; and (7) digital replica. Notably, however, only individuals domiciled in Louisiana or individuals who died domiciled in Louisiana qualify for protection under the Act. An individual’s statutorily protected right continues after the individual’s death, even if the individual did not exploit his or her identity during their lifetime. The protections terminate 50 years after an individual’s death, and may terminate sooner if the individual’s estate or authorized representative fails to monetize the individual’s identity for three consecutive years following the individual’s death.

A modern feature of the Act is its regulation of the “digital replica” of an individual. The Act defines “digital replica” as “a computer-generated or electronic reproduction of a professional performer’s likeness or voice that is so realistic as to be indistinguishable from the actual likeness or voice of the professional performer.” The Act prohibits the unauthorized “use [of] a digital replica in a public performance of a scripted audiovisual work, or in a live performance of a dramatic work” where the digital replica intends to and does create an impression “that the performer is actually performing in the role of a fictional character.” This prohibition protects performers from exploitation of their identity through nontraditional methods, such as holograms, that could undermine a performer’s reputation.

Notably, the Act affords individuals a “property right” to the use of their identity for commercial purposes and, accordingly, the individual’s right is “heritable, licensable, assignable, and transferable.” The transferability of an individual’s right exposes the individual to indefinite or unauthorized exploitation. For example, some scholars worry that a parent or guardian of a minor can transfer, license, or assign a minor’s identity rights in perpetuity, resulting in the minor losing control of his or her own identity.¹ Additionally, if a decedent transferred his or her identity rights prior to the decedent’s death, the family of the decedent could be left without any benefit from the decedent’s identity. In contrast, because the family of a decedent inherits the decedent’s identity rights, the family could exploit the decedent’s identity against his or her wishes, especially considering that the Act permits an individual’s rights to continue 50 years after death regardless of whether the individual monetized his identity before death.

The protections afforded by the Act, however, balance the potential concerns. For example, the Act does not discriminate against various levels of notoriety. As long as the individual is domiciled in or died domiciled in Louisiana, the individual has a protectable right in his or her identity. This breadth of protection means an individual that unexpectedly or temporarily becomes famous via a viral social media post has a protectable right to profit from her identity. Additionally, the ability of an individual’s heirs to capitalize on the individual’s identity maximizes the potential earnings from an individual’s work or notoriety.

Considering the protections afforded by the Act, Louisiana has significantly expanded the identity rights afforded to its domiciliaries. Such expansion risks indefinite and undesired exploitation of an individual’s identity, but also allows an individual to maximize the profitability of his identity. Ultimately, the Act modernizes Louisiana’s protections and will likely prove beneficial for many individuals in the state.

[1] Jennifer E. Rothman, Louisiana’s Allen Toussaint Legacy Act Heads to Governor’s Desk, Rothman’s Roadmap to the Right of Publicity (June 6, 2022), https://rightofpublicityroadmap.com/news_commentary/louisianas-allen-toussaint-legacy-act-heads-to-governors-desk/.