Michigan Right of Publicity Law

This page covers legal information specific to the State of Michigan. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.

Although no state appellate court in Michigan has yet explicitly recognized a common law right of publicity, the U.S. Court of Appeals for the Sixth Circuit has opined that such a right would be recognized under Michigan law. In addition, Michigan's state appellate courts have recognized comparable protection in the nature of a property right under its "appropriation" tort. The state has no corresponding statute.

Publications and political organizations concerned about infringing on a plaintiff's right of publicity should note that state appellate courts have interpreted the First Amendment to protect a broad range of speech from appropriation claims. For more detail, consult the First Amendment section below.

What is protected?

The Sixth Circuit has suggested that Michigan would recognize a right of publicity to protect a person's ‘identity' in addition to their name and likeness. It would therefore be possible to violate Michigan's common law right of publicity without employing a person's photo or name. In Carson v. Here's Johnny Portable Toilets, Inc., 698 F.2d 831 (6th Cir. 1983), the U.S. Court of Appeals for the Sixth Circuit held that the use of an identifying catchphrase ("Here's Johnny") by a portable toilet company was enough to constitute an appropriation of Johnny Carson's identity under Michigan law. In fact, the court in Carson noted that the use of Johnny Carson's full name, John William Carson, would not have infringed on his right of publicity as it is distinct from his identity as celebrity.

In Battaglieri v. Mackinac Ctr. for Pub. Policy, 261 Mich. App. 296 (2004), the Court of Appeals of Michigan explained that under Michigan's tort of appropriation, "any unauthorized use of a plaintiff's name or likeness, however inoffensive in itself, is actionable if that use results in a benefit to another."

What constitutes a violation of the common law right of publicity?

The U.S. Court of Appeals for the Sixth Circuit has suggested that Michigan would use a two part test to determine whether or not a violation of the right of publicity has occurred, in which the plaintiff must demonstrate:

1. "A pecuniary interest in her identity"
2. "That her identity has been commercially exploited by a defendant"

Parks v. LaFace Records, 329 F.3d 437, 460 (6th Cir. 2003). In Parks, civil rights hero Rosa Parks brought suit against the rap group Outkast for using her name in a song title. The court held that her claim passed both prongs of the test, because she had used her name in the past for promotional purposes, and because Outkast used her name to sell records.

It is unclear how meaningful the requirement of the first prong is. Some cases suggest it may bar a non-celebrity from bringing suit. In Edwards v. Church of God in Christ, No. 220348, 2002 WL 393577 (Mich. App. 2002), the Court of Appeals of Michigan held that "no cognizable tort for negligent misappropriation of an unknown singer's voice exists in Michigan." The scope of this holding is ambiguous, but it at least raises the possibility that a plaintiff's fame may be a pre-requisite to recovery. In Carson, similarly, the Sixth Circuit Court of Appeals focused on Johnny Carson's status as a celebrity, and noted that it was the basis for the pecuniary value of his identity, explaining that "a celebrity's identity can be valuable in the promotion of products, and the celebrity has an interest that may be protected from the unauthorized commercial exploitation of that identity."

On the other hand, the very act of commercial exploitation may be sufficient to prove a plaintiff's pecuniary interest in their identity, meaning that satisfying the second prong of the test satisfies the first. In Arnold v. Treadwell, No. 283093, 2009 WL 2136909 (Mich. App. 2009), a model sued a website for publishing her photo and sending it to a magazine without permission. The Court of Appeals of Michigan held that the act of publishing and sending the photo indicated that the model's identity had value, although it also acknowledged that her history as a dancer and model further supported the contention.

Parks and Carson demonstrate that the second prong does not require the defendant to sell or license the name for profit. Simply attaching the name to a product can constitute commercial exploitation.