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Arizona ruling: Publicity rights last beyond death

PHOENIX -- Arizona's appellate court on Thursday broadened the ability of celebrities and everyday citizens to protect their name and image, ruling that a person's right to make claims of violations lasts even after death.

In a case of siblings at odds over online commentaries about their deceased mother, the Court of Appeals ruled that any exploitation occurring posthumously is cause for action.

The opinion likely marks the first time Arizona courts have drawn a clear line about the extent of publicity law in the state, attorneys said.

David Bodney, a Phoenix attorney who specializes in media law and intellectual property litigation, called the decision ``groundbreaking.''

``The case is less cause for celebration by living celebrities than it may be for their estates in cases involving real claims for misappropriation,'' Bodney said.

However, the panel said in its ruling about the case involving battling siblings that Robin Reynolds' online article and blog post were considered ``expressive works'' that don't use Lois Reynolds' name for commercial purposes.

According to court documents, Sylvia and Doug Reynolds said their sister published personal details and a photo of their mother, Lois Reynolds, who died in 2011, for financial gain. Robin Reynolds wrote about her aging mother's daily challenges with independent living in a 2010 online magazine story. Despite her siblings' objections, she posted a tribute after her mother's passing in May 2011.

``When you write an expressive work and you happen to mention a real person, that doesn't in any way make it a right of publicity,'' said Maria Crimi Speth, an attorney representing Robin Reynolds. ``If you can't write blogs about your mom, is everybody going to be sued on Facebook?''

A spokeswoman for Fennemore Craig, the firm that represented Sylvia and Doug Reynolds, said attorneys would not be commenting.

Proving intent to profit through the use of an image would be crucial to making a claim of publicity violation stick. As a result, those who use images for reporting news or, like Robin Reynolds, commentary would be seen as exceptions, Bodney said.

``I would not sound the alarm about this decision because it recognizes that expressive works that do not exploit the name or likeness of another person commercially are not actionable,'' Bodney said.

In an age of social media, it would also be difficult to sue anyone spreading viral photos or images poking fun at celebrities or people they know.

``Even the broad recognition of this privacy claim does not eliminate the protection of the First Amendment,'' Bodney said. ``The U.S. Supreme Court has recognized that parody and satire are absolutely privileged under the First Amendment.''

Thanks to Instagram, Facebook and Twitter, putting a celebrity's name or face on a product isn't the only way companies can get into trouble. Companies need to be cautious about cyber-linking their goods or services to someone, Speth said.

A recent example of this is a lawsuit brought earlier this month by actress Katherine Heigl against Duane Reade Inc. The Emmy-winning actress, known for ``Grey's Anatomy'' and ``Knocked Up,'' filed the lawsuit in federal court in Manhattan and is seeking at least $6 million in damages.

According to the complaint, Duane Reade, a drug store chain, used a paparazzi photo of Heigl on its Twitter and Facebook accounts for commercial gain despite her objection.

Publicity rights are not consistent state to state. The court's ruling puts Arizona on par with California publicity law. In other states a person's right to claim any misappropriation of image or identity expires upon death.

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Follow Terry Tang on Twitter at https://twitter.com/ttangAP

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