“Southern Fights”*: A Battle to Expand the Right of Publicity in Louisiana Under the Allen Toussaint Legacy Act

Nov 27

By Christian Marks

*See note 1

I. INTRODUCTION

The rapid growth and improvement of technology has ushered in an increase in litigation involving intellectual property (IP) rights.[2] Whenever the topic of intellectual property arises, its core doctrines tend to come to mind, namely copyright, patent, and trademark. However, one often-forgotten issue has become particularly pertinent in this new technological landscape—the right of publicity. Simply put, the right of publicity can be defined as an individual’s right to prevent the unauthorized use of his name, image, or likeness for commercial purposes.[3] Other IP doctrines protect creative works, product design, and brand names or logos, but the right of publicity protects the commercialization of one’s identity, which has become an increasingly important interest.[4] Despite its importance, many states do not statutorily recognize a right of publicity.[5] In a time when nearly anyone’s name or image can be accessed with a simple click of a button, individuals, particularly celebrities, have become more aware of possible infringements upon their right of publicity and are calling on legislatures for avenues to protect them. Although Louisiana is only the 25th most populous state in the country[6], its cultural pillars have produced thousands of celebrities, including famous musicians, chefs, and athletes.[7] As a result, the right of publicity is a highly relevant topic in Louisiana.

Suppose you have spent your entire life trying to become the best musician possible. After years of hard work and modest living, you finally have your breakthrough, and one of your songs jumps to the top of every chart in the country. You follow up your first hit with several others, making you a national icon in the music industry. Not only has your music become immensely valuable, but you have become famous enough that your identity itself is valuable. Businesses all over the country have reached out to you in an attempt to make you their official spokesperson. You sign several lucrative advertisement deals. However, one day as you are walking down Canal Street in downtown New Orleans, you see a stranger on the side of the road selling shirts with your face on them. Under Louisiana law, are you able to prevent this stranger from profiting off of your identity without your consent? The simple answer is yes. But does this right to control the commercialization of your identity pass to your estate once you have died? Prior to 2022, the answer to this question would have been “no.” Only recently did the state recognize a post-mortem right of publicity that allows an individual’s estate to control the commercialization of the individual’s identity after his death.[8]

The hypothetical above is quite similar to a real-life scenario involving famous New Orleans musician Allen Toussaint.[9] Known for songs such as “Southern Nights” and “Fortune Teller,” Toussaint became a New Orleans legend and an icon for music fans around the world.[10] He passed away in 2015 at the age of seventy-seven.[11] Months after Toussaint’s death, while attending the New Orleans Jazz and Heritage Festival, Timothy Kappel, an intellectual property and entertainment law attorney, noticed a vendor outside the festival selling koozies with Toussaint’s image on them.[12] Believing that Toussaint’s estate should have the right to either profit from the sale of the koozies or stop the vendor from commercializing Toussaint’s identity, Kappel began pushing the legislature for a bill that recognized a heritable, post-mortem right of publicity.[13]

The Louisiana legislature spent the next several years debating the appropriateness of statutorily recognizing the right of publicity.[14] One of the challenges that the legislature faced was finding the balance between protecting the individual and encouraging innovation[15]—a core issue across all intellectual property doctrines.[16] Generally, greater protection of the individual results in less opportunity for the rest of society to innovate. Regarding the right of publicity specifically, an argument can be made that longer, more expansive individual protections hinder the rest of the population’s ability to use that individual’s identity for social benefit, including uses such as marketing and advertising. However, while society’s interest in using an individual’s identity has weight, the individual undoubtedly has a great intrinsic interest in her own identity and the ability to control its commercialization. Rationally, this interest outweighs any interest that the public may have.

After years of debate, Louisiana finally passed a bill recognizing a post-mortem right of publicity.[17] Signed by Governor John Bel Edwards in June of 2022, this bill became known as the “Allen Toussaint Legacy Act” (ATLA).[18] The ATLA provides that “every individual has a property right in connection with the use of that individual's identity for commercial purposes.”[19] The Act also provides that this right is heritable and enforceable until fifty years after the individual’s death.[20] By passing the ATLA, Louisiana has essentially prohibited third parties from using an individual’s name, image, signature, or voice without first acquiring the consent of the individual.[21] Furthermore, if the individual is deceased, a third party must now get consent from that individual’s estate in order to profit off of the deceased’s identity.[22] The ATLA is undoubtedly a step in the right direction for individuals and their estates trying to protect the commercialization of their identities, but several problems remain regarding the duration and scope of the publicity rights the ATLA grants.[23]

This Comment addresses Louisiana’s stance on the right of publicity and recommends certain amendments needed for the ATLA to better serve its purpose. Although the ATLA provides a long overdue right to the heirs of individuals, changes are necessary in order to achieve more uniformity with other states’ statutes, as well as with similar federal intellectual property doctrines, namely copyright and trademark. Section II of this Comment will address pertinent background on the right of publicity, including Louisiana’s history regarding the right prior to the ATLA and Louisiana’s current stance after the passage of the ATLA. Section III will first analyze the ATLA compared to publicity right statutes in New York, California, and Indiana, before comparing the ATLA to the federal copyright doctrines of copyright and trademark. Section IV will propose changes to the newly passed ATLA that would provide more efficient litigation without compromising the publicity rights of individuals and their estates. The changes would also promote uniformity among intellectual property doctrines. In particular, this Comment proposes that Louisiana amends the ATLA by (1) repealing the requirement that an individual be domiciled in Louisiana in order for his estate to recover via the ATLA and (2) changing the duration of the estates’ rights from fifty years after the individual’s death to seventy years after the individual’s death.

II. A HISTORY OF THE RIGHT OF PUBLICITY IN LOUISIANA

In order to fully comprehend the Allen Toussaint Legacy Act and its effects, one must first understand the right of publicity generally, as well as each state’s treatment of the right. As established in the introduction, the right of publicity can be defined as an individual’s right to prevent a third party from using that individual’s name, image, or likeness for commercial purposes without consent.[24] In some ways, the right of publicity is similar to the intellectual property doctrines of copyright and trademark.[25] Where copyright protects creative works and trademark protects a brand, the right of publicity protects the commercialization of one’s identity.[26]

The right of publicity is typically a state property right developed from common law.[27] Some states codify the right of publicity in their statutes, while others solely recognize the common law right of publicity.[28] State-by-state treatment of the right of publicity has created some inconsistency, since the common law doctrine does not address whether the right survives after an individual’s death and passes to the estate.[29] As a result, states have made their own determinations on the heritability of this right.[30]

Notably, because the right of publicity is a product of the common law, Louisiana did not recognize it prior to the passing of the ATLA in 2022.[31] Subsection A addresses how Louisiana, prior to the ATLA, protected individuals from the misappropriation of their identities via privacy laws. Next, Subsection B discusses the ATLA, particularly who and what the ATLA protects, its fair use exceptions, and the duration of its rights.

A. Louisiana’s Stance on the Right of Publicity Prior to the Allen Toussaint Legacy Act

Unlike many other states, Louisiana did not recognize the common law’s right of publicity before passing the ATLA.[32] In the 2018 case Frigon v. Universal Pictures, Louisiana’s First Circuit Court of Appeal refused to recognize the right of publicity because there was no such right specifically mentioned in a Louisiana statute.[33] In Frigon, the plaintiff attempted to sue a movie studio for using her deceased father’s life story without his estate’s consent.[34] Unfortunately for the plaintiff, the court held that the estate had no right of publicity and thus could not recover.[35] The court noted “that to hold jurisprudentially that a right of publicity exists would constitute an unwarranted intrusion into an area in which the legislature has not seen fit to act.”[36] Therefore, the court concluded that the plaintiff had no right to control the commercial appropriation of her late father’s identity because there was no Louisiana statute giving her that right.[37]

Prior to the enactment of the ATLA in 2022, Louisiana citizens’ only avenue to recover for the misappropriation of their identities was a state recognized privacy law tort.[38] However, at its foundation, the privacy law tort differs from the right of publicity. Where the right of publicity focuses on preventing the economic exploitation of an individual’s identity, the privacy law tort focuses strictly on the individual’s privacy interests.[39] Further, while the privacy tort offers one avenue to recover for the misappropriation of one’s identity, it is more difficult to recover under a privacy claim than under the right of publicity. In order to successfully claim this privacy law tort, a plaintiff must first prove that the defendant appropriated the plaintiff’s name or likeness for the defendant’s own benefit.[40] Additionally, a “[v]iolation of the right of privacy is actionable only when a defendant’s conduct is unreasonable and seriously interferes with another’s privacy interest.”[41] Ultimately, the “unreasonableness” requirement makes it difficult to successfully claim a privacy law tort.

Significantly, although Louisiana privacy law offers one method of recovery for the misappropriation of one’s identity, this privacy right is uninheritable and thus ends at the individual’s death.[42] In Tatum v. New Orleans Aviation Board, the plaintiff, a son of a local musician, sued the New Orleans Airport for painting his deceased mother on one of its terminal’s walls without his consent.[43] The plaintiff brought suit under Louisiana privacy law; however, he was unable to recover because the court held that privacy rights are uninheritable. The court held that “the right to privacy is a personal right that belonged only to the late [mother].”[44] As a result, the New Orleans Airport, as an unauthorized third party, was able to benefit off of the deceased mother’s identity, and the plaintiff was left without recourse.[45] Ultimately, while Louisiana’s privacy law tort does give citizens one route to recovery for the misappropriation of their identities, it leaves the estates of individuals powerless and without recourse once the individual passes away.[46]

B. Allen Toussaint Legacy Act

After the Allen Toussaint koozie story came to light, attorneys and legislators across the state spent several years debating whether it was appropriate to statutorily recognize a right of publicity in Louisiana.[47] After years of debate and several failed attempts, Louisiana finally passed a bill protecting the commercialization of deceased individuals’ identities.[48] Signed by Governor John Bel Edwards in June 2022 and enacted in August 2022, the ATLA effectively recognizes the right of publicity, which provides individuals with a way to control the commercialization of their identities without having to use state privacy law.[49] The ATLA appropriately established rights of publicity both for individuals while they are alive and for their estates after the individuals have passed away.[50] However, the ATLA set parameters on these rights by limiting both the duration of these rights and the actions which are prohibited under the Act.[51]

First, this section will discuss who and what the ATLA protects as well as certain “fair use” exceptions that allow third parties to use an individual’s identity in certain circumstances. Second, this section will discuss the duration of these publicity rights and how it changes once an individual has died.

1. Who and What the ATLA protects

The ATLA provides that “[e]very individual has a property right in connection with the use of that individual’s identity for commercial purposes.”[52] As a result, the ATLA prohibits any third party from using “an individual's identity for a commercial purpose in Louisiana without having first obtained consent from the individual or the individual's authorized representative.”[53] For purposes of this statute, an individual is defined either as “a living natural person domiciled in Louisiana” or as a “deceased natural person who was domiciled in Louisiana at the time of the individual's death.”[54] Thus, the ATLA not only creates a publicity right for living persons, but it also creates a property right that is heritable to the estate after an individual dies.[55] Additionally, the right of publicity granted under the ATLA is “heritable, licensable, assignable, and transferable to the executors, heirs, legatees, assignees, or licensees of the individual,” which emphasizes that this property right can also be transferred prior to an individual’s death.[56]

Notably, an individual’s estate cannot recover under the ATLA unless the individual was domiciled in Louisiana at the time of death. The Louisiana legislature likely created this domiciliary restriction to protect the identity rights of its own citizens while also allowing third parties to profit off of the identities of any non-Louisiana citizens, which potentially could bring more business to the state. However, this restriction fails to protect many individuals who built their entire careers within the state but happened to be domiciled elsewhere at the time of their death.

Furthermore, the ATLA’s main purpose is to allow an individual to have commercial control of his own identity.[57] Under the ATLA, identity is defined as “individual's name, voice, signature, photograph, image, likeness, or digital replica.”[58] A digital replica refers to “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.”[59] Hence, the ATLA prohibits both the actual use of one’s identity as well as the digital recreation of one’s identity.

Additionally, the ATLA, unlike many other states’ statutes, contains no requirement that the individual’s identity have any commercial value at the time of his death.[60] Therefore, the ATLA rightfully provides any Louisiana individual and her estate with a publicity right, even if that individual’s identity had no commercial value while she was alive.[61] This provision opens up the Act’s protections to all Louisiana individuals, not just celebrities.

The ATLA protects estates in similar situations as Allen Toussaint’s by allowing injunctive relief and actual damages for the unauthorized use of the person’s identity even after death.[62] Undoubtedly, estates will be able to prevent third parties from profiting off of unauthorized merchandizing.[63] However, this act also provides a broad range of exempt actions, or “fair uses,” that allow third parties to commercialize another’s identity without consent under certain circumstances.[64] The concept of “fair use” is far from new, as both copyright and trademark doctrine also contain fair use provisions, which will be discussed in Section III.[65] Fair use exemptions exist throughout intellectual property doctrines in order to balance the protection of individuals with society’s interest in cultural innovation. The ATLA provides that works created under the following circumstances do not violate the Louisiana statute:

(1) In connection with a news, public affairs, sports transmission or account, or political campaign.
(2) In a work of political, public interest, educational, or newsworthy value, including comment, criticism, or parody, or similar works, such as documentaries, docudramas, or historical or biographical works, or a representation of an individual as himself or herself, regardless of the degree of fictionalization.
(3) In a play, book, magazine, newspaper, literary work, musical composition, single and original work of art or photograph, or visual work.
(4) In a sound recording, audiovisual work, motion picture, or radio or television program, unless the use creates an unauthorized performance.
(5) Any act of restoration or preservation of a sound recording, audiovisual work, or radio or television program.
(6) In an advertisement, commercial announcement, or display of any of the works described in this Subpart.[66]

Notably, none of these exemptions apply when the work is “so directly connected with a product, article of merchandise, good, or service as to constitute an act of advertising, selling, or soliciting purchases of that product, article of merchandise, good, or service.”[67] Thus, any unauthorized commercialization of one’s identity is clearly a violation of the ATLA, and an individual or his estate will be able to recover, barring the statutory deadlines that will be discussed in the following subsection.[68]

2. Duration of the Post-Mortem Right of Publicity under the ATLA

The ATLA clearly establishes a right of publicity for living individuals and for their estate once the individual passes away. For a living individual, the duration of this right is quite simple: she retains it as long as she is alive.[69] After a person passes away, the publicity right initially belongs to her estate for fifty years after her death.[70] However, the estate can prematurely lose the publicity right if a third party can show that the estate has not used the individual’s identity for commercial purposes for three consecutive years.[71] Importantly, a claim for a violation of these rights cannot be asserted unless the alleged violation occurred after August 1, 2022.[72] Further, an alleged violation must occur within the State of Louisiana in order for a plaintiff to assert a claim under the ATLA, and the claim is subject to a prescriptive period of two years from the date the alleged violation was discovered or should have been discovered.[73]

The Louisiana legislature appears to have arbitrarily arrived at the fifty-year allowance, as granting the estate fifty years is not consistent with any other intellectual property right, specifically copyright.[74] Although federal copyright law typically grants protection of creative works for seventy years after the creator’s death,[75] the Louisiana legislature likely resulted in a shorter duration for the ATLA in order to persuade third parties to bring business to the state. The shorter the amount of time an individual’s estate has control over the commercialization of his identity, the quicker businesses can profit off of that person’s identity without the consent of the estate. Proponents and opponents of the ATLA spent years debating the duration of this post-mortem publicity right, and the arbitrary fifty-year duration is likely a result of lobbying and legislative compromise. However, in its treatment of other aspects of the Act, the Louisiana legislature was consistent with other IP doctrines, namely trademark, in including the three-year non-use provision.[76] The similarities and differences between the right of publicity and other IP doctrines are discussed in the following Section.[77]

III. HOW THE ALLEN TOUSSAINT LEGACY ACT COMPARES TO OTHER STATES’ STATUTES AND FEDERAL INTELLECTUAL PROPERTY DOCTRINES

To recap, as a property right, the right of publicity stems from state law.[78] Half of the states in the country do not require a statute-based publicity right claim because the states recognize the right from the common law.[79] However, the other twenty-five states, including Louisiana, currently have a specific statute recognizing the right of publicity.[80] Of these twenty-five states, many also recognize a post-mortem publicity right that benefits the individual’s estate.[81] Unfortunately, states differ on how long these post-mortem publicity rights last. While the ATLA grants Louisiana estates a fifty-year protection after the death of the individual,[82] some states offer as little as ten years’ post-mortem protection.[83] Still others grant up to 100 years of protection after death.[84] States undoubtedly have final discretion when determining the provisions of their own right of publicity statutes; however, Louisiana should consider examining the statutes of states who have greater experience dealing with the right of publicity and related IP issues. Additionally, Louisiana should consider how its ATLA provisions coincide with other IP doctrines, namely copyright and trademark.

Subsection A compares the ATLA with the statutes of three states who handle their rights of publicity differently: New York, California, and Indiana. Subsection B then examines how the right of publicity granted by the ATLA compares to the IP rights granted by copyright and trademark.

A. Rights of Publicity in New York, California, and Indiana compared to the ATLA

New York was the first state to enact a statute regarding a living person’s right of publicity when it enacted the New York Civil Right Law in 1903.[85] This law prohibits the unauthorized use of the “name, portrait, or picture of any living person” for “advertising purposes” or “for the purposes of trade.”[86] In 1953, a New York court recognized the difference between this publicity right and the right of privacy, determining that this right of publicity centers around the economic benefit of one’s identity as opposed to privacy concerns.[87] Despite its early recognition of the right of publicity, New York did not implement a statute recognizing a post-mortem right of publicity until 2020.[88]

Unlike the ATLA’s provisions that protect all Louisiana citizens, New York’s post-mortem publicity right statute only protects “deceased personalities” and “deceased performers.”[89] New York’s statute defines deceased personalities as “any deceased natural person domiciled in [New York] at the time of death whose name, voice, signature, photograph, or likeness has commercial value at the time of his or her death, or because of his or her death . . . .”[90] Whether or not the deceased personality actually commercialized his identity during his lifetime is immaterial under New York statute.[91] The New York statute defines deceased performers as “a deceased natural person domiciled in this state at the time of death who, for gain or livelihood, was regularly engaged in acting, singing, dancing, or playing a musical instrument.”[92] Therefore, in order for an estate in New York to recover via the post-mortem publicity right, the deceased individual must have either been a performer or had a commercially valuable identity at the time of his death.[93] New York likely implemented these commercial value requirements in an attempt to prevent floods of litigation entering their courts; however, these restrictions could potentially be counter-productive, leading to even more litigation surrounding the question of whether an individual’s identity had commercial value.

Similar to the ATLA’s provision which requires an individual to have been domiciled in Louisiana at the time of death, New York’s provision requires the deceased to have been domiciled in the state at the time of death.[94] Additionally, New York’s statute and the ATLA have similar fair use provisions.[95] However, the New York post-mortem right only lasts for forty years after the death of the individual[96] as opposed to the ATLA’s fifty-year duration.[97] Although New York has more citizens and celebrities than Louisiana,[98] New York limits its post-mortem publicity right further than Louisiana does, both in scope and in duration.[99] New York likely implemented their domiciliary and duration restrictions for the same reasons Louisiana has—to promote business within their state. However, these restrictions unquestionably hinder the interests that individuals and their estates have in their identities.

California first granted living individuals the right of publicity in 1972 through Section 3334 of the California Civil Code.[100] Later, in 1995, California recognized a post-mortem right of publicity for “deceased personalities.”[101] Similar to New York’s statute[102], California’s post-mortem publicity statute defines deceased personalities as “any natural person whose name, voice, signature, photograph, or likeness has commercial value at the time of his or her death” or “because his or her death[.]”[103] Like New York and unlike Louisiana, California requires the deceased individual’s identity to have had commercial value at the time of death in order for an estate to recover for an alleged violation.[104] Once again similar to New York, California likely implements this “commercial value” requirement in order to prevent floods of litigation while also maintaining the protection of its precious celebrity-based industries.

Just as Louisiana does, California requires the individual to have been domiciled in the state at the time of his death.[105] California also has similar fair use provisions.[106] California originally provided a post-mortem publicity right that lasted only fifty years after an individual’s death.[107] However, after the Copyright Term Extension Act of 1998 extended copyright’s post-mortem duration from fifty years to seventy years,[108] California decided to extend its post-mortem right of publicity as well.[109] In extending the duration of the post-mortem right of publicity in connection with the Copyright Extension Act of 1998, California reasonably realized that the right to control the commercialization of one’s identity is just as great as the right to control the commercialization of one’s creative work.[110] Today, California post-mortem right lasts for seventy years after the individual’s death, which is consistent with federal copyright’s duration[111] and twenty years longer than the ATLA’s fifty years.[112]

Indiana first statutorily recognized the right of publicity in 1994.[113] Unlike New York and California, Indiana is not a state that regularly deals with the right of publicity and related IP issues. However, as a state similar in size and population to Louisiana,[114] Indiana’s statute provides a fair comparison to Louisiana’s. Although Indiana has similar fair use exceptions as Louisiana,[115] Indiana’s publicity right statute is vastly different than the ATLA.[116] First, Indiana’s statute, like New York’s and California’s, provides that a deceased individual must have had a commercially valuable identity at the time of his death in order for his estate to recover via post-mortem publicity right.[117] Once again, this is a common difference between Louisiana’s ATLA and other states’ statutes.

Indiana also allows for post-mortem publicity rights to extend for 100 years after an individual’s death, which is the longest duration provided by any state.[118] By recognizing a post-mortem right of publicity that lasts thirty years longer than copyright protections, the Indiana legislature suggests that the control over the commercialization of one’s identity may in fact be more important than the control over one’s creative works. By granting such a long duration, Indiana unequivocally provides individuals and their estates with more than ample protection. However, it must be noted that such a long duration could potentially deter businesses from entering the state, as it would be more difficult and expensive to acquire permission to market or advertise using one’s identity.

Perhaps the biggest difference between Indiana’s and Louisiana’s statute is that Indiana allows an individual or his estate to recover under its statute regardless of “domicile, residence, or citizenship.”[119] As Louisiana requires an individual to be domiciled within the state, Indiana allows anyone to recover under its statute as long as the violation occurred within Indiana.[120] In opting not to have a domiciliary requirement, Indiana effectively creates an avenue for estates to recover for any publicity right infringement occurring within their state. Suppose a woman lived her entire life in one state but moved to another right before she died. In many states, including Louisiana, her estate would only be able to recover from publicity right infringement if she lived in the state at her death. In contrast, because there is no domiciliary requirement in Indiana, an estate, regardless of the state of domicile at the time of the individual’s death, can rightfully recover as long as the infringement occurred within the state.

New York, California, Indiana, and Louisiana all differ with respect to the scope and duration of their rights of publicity. Below is a chart to aid in understanding the similarities and differences between the four states:

B. The ATLA compared to Copyright and Trademark

The right of publicity naturally intertwines with the federally recognized IP doctrines of copyright and trademark. Although the right of publicity is not identical to copyright and trademark, many notable similarities exist. As mentioned earlier, copyright protects original, creative works, such as books, art, plays, movies, and music.[121] On the other hand, trademark law protects a business’s brand, name, or logo and allows businesses to prevent counterfeiting and reputation damage.[122] While the publicity right does not protect a creative work or a business’s brand, it protects what is arguably a person’s most precious asset—his identity.[123]

Copyright. The Copyright Act of 1976 creates the basis of modern copyright law, which is codified in Title 17 of the United States Code.[124] Similar to the way the right of publicity gives an individual or his estate the ability to recover from the unauthorized commercialization of his identity, copyright law gives a creator or his estate the ability to recover from the unauthorized use of his original creation.[125] To illustrate this difference, while the ATLA prevents a third party from selling t-shirts with an individual’s face on them without first acquiring the individual’s consent, the Copyright Act prevents a third party from selling an author’s book without first acquiring publishing rights. Title 17 of the United States Code defines copyright protection as follows:

Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works.[126]

Additionally, the Copyright Act, like the ATLA, provides similar fair use exemptions.[127] The Copyright Act provides fair use exemptions for “purposes such as criticism, comment, news reporting, [and] teaching.”[128] The Copyright Act additionally provides four factors to consider when determining whether or not fair use applies: (1) the purpose of the use, (2) the nature of the copyrighted work, (3) the substantiality and portion of the copyrighted work used, and (4) the market effect the new work causes for the copyrighted work.[129] The ATLA specifically addresses these factors and states that the ATLA will not affect “privileges afforded under the ‘fair use’ factors in the United States Copyright Act of 1976.”[130] The specific reference to copyright law in the ATLA further highlights the similarity between copyright and the right of publicity. Additionally, just as an individual immediately and automatically receives a right of publicity under the ATLA, copyright protects an author’s original work immediately once the work is created without the need to register.[131]

Although the Copyright Act and the ATLA have substantial similarities, a glaring difference is apparent—the post-mortem duration. Copyright law typically gives the creator’s estate the exclusive right to his creative work for up to seventy years after the creator’s death,[132] which is twenty years longer than ATLA’s post-mortem rights of publicity.[133] However, copyright law has not always provided estates with seventy years of control over creative works.[134] Prior to 1998, copyright law typically gave estates only fifty years of protection.[135] In an attempt to gain more protection and expand copyright duration, large companies with significant interest in protecting their creative works, such as Disney, began to lobby Congress .[136] As a result, Congress decided to expand copyright duration from fifty to seventy years after the creator’s death.[137] In spite of copyright’s expansion, ATLA’s duration for the post-mortem right of publicity remains consistent with the outdated duration of fifty years, indirectly implying that the Louisiana legislature believes that creative work protection is more important than protection of the commercialization of one’s identity.[138]

Trademark. Trademark law also has many similarities to the right of publicity. The Lanham Act of 1946 established modern day trademark law.[139] A trademark protects a business from the unauthorized use of its name, logos, signs, slogans, or any other company indicator.[140] Similar to how the right of publicity prevents sponsorship confusion, trademark prevents counterfeiting, customer confusion, and reputation damage.[141] However, unlike the time-limited ATLA right of publicity, trademark protections can last perpetually as long as the business maintains use of the mark.[142] This duration is logical because businesses can potentially last forever. Also, trademarks have a three-year non-use provision, similar to the ATLA’s, meaning that a trademark can “die” if a third party can show that the business has not used that mark for three consecutive years.[143]

IV. AMENDING THE ALLEN TOUSSAINT LEGACY ACT

Although the Louisiana legislature could implement additional measures to better protect individuals and their estates from unauthorized uses of identity, several aspects of the ATLA are commendable. The ATLA rightfully provides all Louisiana citizens and their estates with the right of publicity.[144] Louisiana correctly does not require an individual’s identity to have commercial value at the time of death.[145] New York, California, and Indiana all require some extent of commercial value in order for an estate to have a post-mortem right of publicity, but this requirement is seen nowhere else in intellectual property law. Neither copyright nor trademark doctrines require a creative work or brand logo to be commercially valuable in order to be protected.[146] A commercial value requirement for the right of publicity fails to protect the estates of individuals who gained commercial value after their death. For example, John Kennedy Toole was the author of the well-known novel A Confederacy of Dunces.[147] However, Toole’s novel was not published until after his death; thus, his identity had no commercial value at the time of his death.[148] Under other states’ publicity right statutes, estates in similar situations as Toole’s would not have qualified for a post-mortem right to control the commercialization of his identity. However, under the ATLA, estates similar to Toole’s would be eligible to recover. Hence, Louisiana correctly provides a post-mortem right of publicity to estates, regardless of the commercial value of an individual’s identity.

Additionally, the ATLA correctly provides the three-year non-use provision, which clarifies that an estate can lose control of the commercialization of a deceased’s identity if a third party can show that the estate has not used the identity for commercial purposes for three consecutive years.[149] When considering intellectual property doctrines such as the right of publicity, legislatures must balance the individual’s interest with society’s interest. In a case where the estate fails to commercialize a deceased’s identity for three straight years, society’s interest in that identity outweighs the estate’s interest. Additionally, this provision is consistent with trademark doctrine as well.[150] Thus, the three-year non-use provision is appropriate.

Louisiana undoubtedly created an immensely valuable right of publicity when it passed the ATLA. However, in order to maximize the protections that the ATLA attempts to grant, Louisiana legislators need to amend the ATLA by expanding both its protected classes and its duration. First, Subsection A proposes that Louisiana legislators should remove the requirement that an individual must be domiciled in Louisiana at the time of his death in order for his estate to recover via the ATLA. Secondly, Subsection B proposes that Louisiana raise the fifty-year duration to seventy years to coincide with federal copyright law.

A. Louisiana legislators should remove the provision requiring an individual to be domiciled in Louisiana to recover under the ATLA.

Under the current version of the ATLA, an estate can only exercise its post-mortem right of publicity if the deceased individual was domiciled in Louisiana at the time of his death.[151] The Louisiana legislature likely implemented this domiciliary requirement in an attempt to limit the amount of litigation and to provide businesses with an opportunity to commercialize the identities of a broader pool of individuals. Proponents of this requirement would argue that Louisiana only has an obligation to protect its own citizens and their estates. However, the arguments for this requirement lack sufficient reasoning because they neglect the opportunity for broader protection. As long as the alleged violation occurs within the State of Louisiana, an estate should be able to sue under the ATLA.

First, regarding the argument that the domiciliary requirement is better for businesses, removing the requirement would actually be appealing to several businesses, namely celebrity-based industries. Removing the requirement would unequivocally create greater protections, thus convincing actors, athletes, and other celebrities to come do work in a state where they have greater identity protection. Secondly, the domiciliary requirement does not effectively ensure that Louisiana citizens will be protected by the ATLA. Take the Allen Toussaint scenario for example. Allen Toussaint passed away in Madrid, Spain in 2015.[152] At the time of his death, Toussaint had only recently moved back to New Orleans.[153] Although he spent nearly his entire life domiciled in Louisiana and creating his entire legacy from within the state, Toussaint was forced to relocate to New York after Hurricane Katrina in 2005.[154] He spent years domiciled in New York, not knowing whether he would return to Louisiana.[155] Fortunately, Toussaint was able to return to Louisiana prior to his death.[156] Ironically, however, if Toussaint was unable to return to his home state prior to his death, his estate would not have been eligible for recovery under the very statute that bears his name.

In modern times, people relocate for various reasons. Many people do not know which state they will be domiciled in six months from now, let alone at their time of death. If Louisiana were to adopt Indiana’s stance on publicity rights and disregard an individual’s state of domicile,[157] the ATLA would actually benefit business growth and better fulfill its purpose by allowing more people the ability to recover.

B. Louisiana should raise ATLA’s duration to seventy years after an individual’s death to coincide with copyright protection.

Currently, Louisiana seems to have arbitrarily picked a duration for its post-mortem publicity right, like New York and Indiana. As New York and Indiana allow for forty and one hundred years respectively,[158] Louisiana allows for fifty years.[159] None of these durations are found elsewhere in intellectual property doctrine. As mentioned earlier,[160] Louisiana most likely arrived at the fifty-year duration as a result of years of lobbying and legislative compromise. As discussed, copyright law grants a seventy-year protective period.[161] Proponents of greater individual protection in the right of publicity likely fought for a seventy-year duration to coincide with federal copyright law, while opponents of the ATLA likely believed that longer individual protection would hinder the state’s ability to attract businesses. As a result, the Louisiana legislature decided to “meet in the middle” and grant a fifty-year duration for post-mortem publicity rights.

Under the current ATLA, a Louisiana estate can use federal copyright law to protect the commercial rights of a book written by its deceased individual for seventy years, but the same estate would only be able to protect the publicity right of its deceased member’s identity for fifty years. Allowing greater post-mortem protections for one’s creations rather than one’s identity is simply illogical. Why should an estate be able to protect a deceased’s work of art longer than it is able to protect the deceased’s name, image, and likeness?

Louisiana should amend the duration of the ATLA to follow California’s statute. Just as California raised the duration of its post-mortem right of publicity to seventy years once copyright law raised its protections to seventy years,[162] Louisiana should do the same in order to afford greater protection to its citizens. Some may suggest that increasing the duration of post-mortem publicity rights would hinder business—particularly merchandizing and movie production within the state. However, California’s business has yet to suffer from this increased duration, nor should Louisiana’s.[163] In fact, California actually enticed celebrities to come do business within the state when it increased its post-mortem right of publicity duration to seventy years.[164] Commercially valuable people want to do business in a state that grants longer identity-use protection. If Louisiana increased its right of publicity duration to seventy years, celebrity-based industries would undoubtedly be more willing to come do business in Louisiana.

Additionally, raising ATLA’s post-mortem duration to match copyright’s duration would make logical sense because, often, copyright and right of publicity infringement suits are brought together.[165] Typically, federal copyright law preempts state-based right of publicity laws, meaning that copyright law will prevail over publicity rights law when the two are based on the same factual circumstances.[166] However, courts often have difficulty determining whether the claims arise from the same factual circumstances.[167] Having the same duration for the two claims would unquestionably ease the burden of the courts and provide them with some uniformity.

Increasing the right of publicity duration would likely promote business and ease the burden of litigation within the state, but even from a practical stance, it makes no sense to grant longer protection for an individual’s creative works than for an individual’s identity. Identity is arguably one’s most valuable possession; therefore, the ATLA should grant at least the same amount of protection as copyright law.

IV. CONCLUSION

The Allen Toussaint Legacy Act has finally granted Louisiana citizens the long overdue right of publicity. Louisiana citizens unquestionably have greater ability to control the commercialization of their identities with the ATLA in place. However, as a new law, the ATLA has room to improve, particularly in regard to its duration and scope of its protection. By removing the domiciliary requirement and extending the post-mortem duration to seventy years, Louisiana legislators have an opportunity to effectively protect individuals and their estates from the unauthorized use of their most precious assets—their identities.

In today’s society, one cannot go five minutes without seeing a sponsored advertisement, whether it be on a television commercial, merchandise, a billboard, or a social media post. However, now that anyone’s name, image, likeness can be captured with a simple click of a button, everyone’s identity is potentially economically valuable. Regardless of the level of fame, everyone should be able to protect themselves from third parties exploiting and profiting off of their identities. Although the Allen Toussaint Legacy Act came about from the seemingly harmless act of a street vendor selling koozies, individuals can now rely on the ATLA to prevent more injurious infringements. Louisiana prides itself on its cultural pillars of music, film, food, and athletics; and expanding the Louisiana right of publicity will protect the state’s greatest asset—the individuals who create its culture.

[1] The title is a reference to one of Allen Toussaint’s most notable songs, “Southern Nights.” See Allen Toussaint, Southern Nights, on Southern Nights (Reprise Records 1975).

[2] Copyright filings reached a “new high in 2018.” Patent filings “doubled between 2009 and 2013.” Just the Facts: Intellectual Property Cases—Patent, Copyright, and Trademark, U.S. Courts (Feb. 13, 2020), https://www.uscourts.gov/news/2020/02/13/just-facts-intellectual-property-cases-patent-copyright-and-trademark.

[3] Right of Publicity, Merriam-Webster, https://www.merriam-webster.com/legal/right of publicity (last visited Oct. 4, 2023).

[4] Right of Publicity, Int’l Trademark Ass’n, https://www.inta.org/topics/right-of-publicity/ (last visited Oct. 4, 2023).

[5] Right of Publicity Statutes & Interactive Map, Right of Publicity, https://rightofpublicity.com/statutes (last visited October 4, 2023) (“Currently, 25 states have some form of right of publicity statute, with Louisiana, Alabama, Arkansas, New York and South Dakota among the most recent to pass a Right of Publicity legislation.).

[6] Louisiana Population 2023, World Population Rev., https://worldpopulationreview.com/states/louisiana-population (last visited Oct. 4, 2023).

[7] Examples of famous Louisiana musicians include Louis Armstrong, Fats Domino, and Harry Connick, Jr. See Dan Farrant, 18 of the Greatest and Most Famous Musicians from Louisiana, Hello Music Theory (June 15, 2023), https://hellomusictheory.com/learn/famous-musicians-from-louisiana/; Jim Kleinpeter, Louisiana Produces the Most Pro Athletes per Capita in the U.S.: Report, NOLA.com (Feb. 23, 2017), https://www.nola.com/sports/saints/louisiana-produces-the-most-pro-athletes-per-capita-in-the-u-s-report/article_ec397695-5ea1-5690-b319-7a587e89878f.html (Louisiana produces “2.08 pro athletes per 100,000 population.”).

[8] See La. Stat. Ann. § 51:470.3 (2022); A “post-mortem” right refers to a right that continues after the death of an individual. See Tushar Sinha, Post Mortem Rights of Publicity, Metacept (Oct. 21, 2020), https://metacept.com/post-mortem-rights-of-publicity/.

[9] Jake Clapp, A New Law Protects ‘Identity Rights’ of Deceased Louisiana Musicians and Artists, NOLA.com (July 3, 2020), https://www.nola.com/gambit/music/a-new-law-protects-identity-rights-of-deceased-louisiana-musicians-and-artists/article_df66fa02-f96b-11ec-a364-9fb4b0f492a9.html

[10] See Jessica Engler & Mary Love, New Allen Toussaint Legacy Act Creates a Right of Publicity in Louisiana, Kean Miller (June 28, 2022), https://www.louisianalawblog.com/intellectual-property/new-allen-toussaint-legacy-act-creates-a-right-of-publicity-in-louisiana/.

[11] Steve Huey, Allen Toussaint Biography, All Music (Oct. 3, 2023), https://www.allmusic.com/artist/allen-toussaint-mn0000933172/biography.

[12] See Clapp, supra note 9.

[13] Id.

[14] Id.

[15] See generally id.

[16] See Innovation and Intellectual Property, World Intell. Pro. Org., https://www.wipo.int/ip-outreach/en/ipday/2017/innovation_and_intellectual_property.html (last visited Oct. 18, 2023).

[17] La. Stat. Ann. § 51:470.1 (2022).

[18] See Engler & Love, supra note 10.

[19] La. Stat. Ann.§ 51:470.3 (2022).

[20] Id.

[21] Id. § 51:470.2.

[22] Id.

[23] Id. § 51:470.3.

[24] Right of Publicity & Interactive Map, supra note 5.

[25] See Innovation and Intellectual Property, supra note 16.

[26] Trademark, Patent, or Copyright, United States Patent and Trademark Office, https://www.uspto.gov/trademarks/basics/trademark-patent-copyright (last visited October 4, 2023).

[27] Right of Publicity Statutes & Interactive Map, supra note 5.

[28] Id. (“The Right of Publicity is a state-based property right in the United States, so each state determines the parameters of recognition.”).

[29] Sinha, supra note 8.

[30] Id.

[31] See La. Stat. Ann.§ 14:51:470.1 (2022). Prior to the ATLA, Louisiana recognized an invasion of privacy tort which allowed defendants to recover for the misappropriation of their identity. Tatum v. New Orleans Aviation Bd., 2011-1431, p. 2 (La. App. 4 Cir. 4/11/12); 102 So.3d 144, 146, writ denied, 2012-1847 (La. 11/9/12); 100 So.3d 838.

[32] See Frigon v. Universal Pictures, Inc., 2017-0993, p. 11 (La. App. 1 Cir. 6/21/18); 255 So.3d 591, 599, writ denied, 2018-1868 (La. 1/18/19); 262 So.3d 896.

[33] Id.

[34] The movie of topic in this case was “American Made,” starring Tom Cruise. Id. at 594.

[35] Id. at 598.

[36] Id. at 598.

[37] Id. at 599.

[38] See id.

[39] An Abridged History of the Right of Publicity, Right of Publicity, https://rightofpublicity.com/brief-history-of-rop (last visited October 13, 2023).

[40] Frigon, 255 So. 3d at 599.

[41] Tatum, 102 So. 3d at 146.

[42] Id.

[43] Id.

[44] Id. at 147.

[45] See generally id.

[46] See id.

[47] Clapp, supra note 9.

[48] Id.

[49] La. Stat. Ann. § 51:470.1 (2022).

[50] Id. § 51:470.3.

[51] Id.

[52] Id. (emphasis added); The Allen Toussaint Legacy Act defines “commercial purposes" as “the use of an individual's identity for any of the following purposes: (a) On or in connection with products, merchandise, goods, services, commercial activities, or performances. (b) For advertising, soliciting, or promoting products, merchandise, goods, services, commercial activities, or performances. (c) For the purpose of fundraising.” Id. § 51:470.2 (emphasis added).

[53] Id. § 51:470.2 (2022); The Allen Toussaint Legacy Act defines “authorized representative" as “an assignee, licensee, executor, heir, legatee, or other representative of an individual.” Id.

[54] Id.

[55] Id. § 51:470.3.

[56] Id.

[57] Id.

[58] Id. § 51:470.2.

[59] Id.

[60] Id.

[61] Id. § 51:470.3.

[62] “In addition to any other remedy authorized by law, a person who violates an individual's identity rights may be liable for the greater of one thousand dollars and the actual damages, and to the extent not duplicative of the plaintiff's compensatory damages, the disgorgement of profits derived from the unauthorized use of the individual's identity.” Id. § 51:470.4.

[63] Id.

[64] Id. § 51:470.5.

[65] Infra Section III

[66] La. Stat. Ann. § 51:470.5.

[67] Id.

[68] Id.

[69] Id. § 51:470.2.

[70] Id. § 51:470.3.

[71] Id.

[72] Id.

[73] Id. § 51:470.4.

[74] Id. § 51:470.3.

[75] How Long Does Copyright Last?, U.S. Copyright Off., https://www.copyright.gov/help/faq/faq-duration.html (last visited Oct. 10, 2023).

[76] La. Stat. Ann. § 51:470.3 (2022); Proving Abandonment: How Trademarks Can Be Lost Through Non-Use, Nat’l L. Rev. (July 2, 2020), https://www.natlawreview.com/article/proving-abandonment-how-trademark-rights-can-be-lost-through-non-use.

[77] Infra Section III

[78] Right of Publicity & Interactive Map, supra note 5.

[79] Id.

[80] Id.

[81] See id.

[82] La. Stat. Ann. § 51:470.3 (2022).

[83] Wash. Rev. Code Ann. § 63.60.040 (West 2008).

[84] An Abridged History of the Right of Publicity, supra note 39 (For example, Tennessee grants a 10-year post-mortem right; and Indiana and Oklahoma grant a 100-year right.).

[85] Id.

[86] Id.

[87] Id.

[88] See N.Y. Civ. Rights Law § 50-f (McKinney 2022).

[89] Id.

[90] Id. § 50-f(1)(b).

[91] Id.

[92] Id. § 50-f(1)(a).

[93] Id. § 50-f.

[94] Id.

[95] Id. § 50-f(2)(d)(i.) (Some fair uses under the NY statute include works that are a “a play, book, magazine, newspaper, or other literary work[.]”); N.Y. Civ. Rights § 50-f(2)(d)(ii.) (Additional fair uses include “parody, satire, commentary or criticism[.]”; La. Stat. Ann. § 51:470.3 (2022).

[96] Id. § 50-f(8) (McKinney 2022).

[97] La. Stat. Ann. § 51:470.3 (2022).

[98] California and New York ranks first and fourth in state population, respectively; whereas Louisiana ranks 25th. See US States – Ranked by Population 2023, World Population Rev., https://worldpopulationreview.com/states (last visited Oct. 3, 2023).

[99] N.Y. Civ. Rights Law § 50-f (McKinney 2022).

[100] An Abridged History of the Right of Publicity, supra note 39.

[101] Cal. Civ. Code § 3344.1 (West 2023).

[102] N.Y. Civ. Rights Law § 50-f (McKinney 2022).

[103] Cal. Civ. Code § 3344.1(h) (West 2023).

[104] Id.; La. Stat. Ann.§ 51:470.3 (2022).

[105] See Milton H. Greene Archives v. Marilyn Monroe LLC, 692 F.3d 983, 999 (9th Cir. 2012).

[106] Cal. Civ. Code § 3344.1(a)(2) (West 2023). California fair uses include works that are a “play, book, magazine, newspaper, musical composition, audiovisual work, radio or television program, single and original work of art.”

[107] Cal. Civ. Code § 990(f)(3) (West 1999) (current version at Cal. Civ. Code § 3344.1 (West 2023)).

[108] See Disney vs. The Public Domain: How Mickey Mouse Continues to Protect His Copyright, Lucentum (Dec. 5, 2018), https://lucentem.com/2018/12/05/disney-vs-the-public-domain-how-mickey-mouse-continues-to-protect-his-copyright/.

[109] Cal Civ. Code § 3344.1(f)(3) (West 2023).

[110] The prominence of its celebrity-based industries likely played a significant role in California’s decision to extend the duration of post-mortem rights of publicity, as many famous personalities publicity supported the extension. The extension was supported by the Screen Actors Guild and celebrities such as Tom Cruise, Arnold Schwarzenegger, Anjelica Huston, and Michael Douglas. See An Abridged History of the Right of Publicity, supra note 39.

[111] See 17 U.S.C.A. § 302(a) (West).

[112] Cal Civ. Code § 3344.1(f)(3) (West 2023).

[113] Ind. Code § 32-36-1-1 (West 2023).

[114] Indiana Population 2023, World Population Rev., https://worldpopulationreview.com/states/indiana-population (last visited Oct. 11, 2023) (Indiana ranks 17th in state population; compared to Louisiana being 25th.)

[115] Once again, fair uses include works such as literary works, news, and political pieces. See Ind. Code § 32-36-1-1(c) (West 2023).

[116] La. Stat. Ann. § 51:470.5 (West 2022).

[117] Ind. Code § 32-36-1-1(c)(4) (West 2023).

[118] Id. § 32-36-1-8.

[119] Id. § 32-36-1-1(a).

[120] Id. § 32-36-1-8(a).

[121] 17 U.S.C.A. § 102 (West).

[122] What is a Trademark?, U.S. Patent & Trademark Off. (Feb. 6, 2023, 12:38 PM) https://www.uspto.gov/trademarks/basics/trademark-patent-copyright.

[123] Right of Publicity, supra note 4.

[124] 17 U.S.C.A. § 102 (West).

[125] Id. §§ 501-506.

[126] Id. § 102.

[127] Id. § 107.

[128] Id.

[129] Id.

[130] La. Stat. Ann.§ 51:470.5 (2022).

[131] 17 U.S.C.A. § 106 (West).

[132] How Long Does Copyright Last?, supra note 75 (This comment focuses on the typical “life + 70” duration for independent creators. However, copyright duration can differ depending on factors such as: date of creation, whether the copyright belongs to a corporation, and whether or not the work is anonymous.)

[133] La. Stat. Ann. § 51:470.3 (2022).

[134] See Disney vs. The Public Domain: How Mickey Mouse Continues to Protect His Copyright, supra note 108.

[135] Anjelica Davis, What Happens to Your Copyrights After You Die?, Copyright Alliance (Oct. 15, 2019), https://copyrightalliance.org/what-happens-to-your-copyrights-after-you-die/ (last visited Oct. 11, 2023).

[136] Interestingly, Disney played a huge role in lobbying for the extension of copyright protections. Currently, the Mickey Mouse character is scheduled to enter the public domain in 2024. See Disney vs. The Public Domain: How Mickey Mouse Continues to Protect His Copyright, supra note 108.

[137] Davis, supra note 136.

[138] La. Stat. Ann. § 51:470.3 (2022).

[139] Just the Facts: Intellectual Property Cases—Patent, Copyright, and Trademark, supra note 2.

[140] Id.

[141] What is a Trademark?, supra note 122.

[142] 15 U.S.C.A. § 1501 (West).

[143] Id.

[144] La. Stat. Ann.§ 51:470.3 (2022).

[145] Id.

[146] 17 U.S.C. § 102; What is a trademark?, supra note 122.

[147] John Kennedy Toole was a Tulane University graduate who lived in Louisiana, which further emphasizes the need for the right of publicity in this state. See Tom Bissell, The Uneasy Afterlife of “A Confederacy of Dunces”, The New Yorker (Jan. 5, 2021), https://www.newyorker.com/books/second-read/the-uneasy-afterlife-of-a-confederacy-of-dunces.

[148] Id.

[149] La. Stat. Ann. § 51:470.3 (2022).

[150] 15 U.S.C.A. § 1127 (West).

[151] La. Stat. Ann. § 51:470.2 (2022).

[152] Ben Sisario, Allen Toussaint, New Orleans R&B Mainstay, Dies at 77, N.Y. Times (Nov. 10, 2015), https://www.nytimes.com/2015/11/11/arts/music/allen-toussaint-dies.html.

[153] Id.

[154] Id.

[155] Id.

[156] Id.

[157] Supra Section III(B)

[158] See Right of Publicity Statutes & Interactive Map, supra note 5.

[159] La. Stat. Ann. § 51:470.3 (2022).

[160] Supra Section II(B)(2).

[161] How Long Does Copyright Last?, supra note 75.

[162] Cal. Civ. Code § 3344.1(f)(3) (West).

[163] “Arts, entertainment, creation, accommodation, and food services” added $104.37 billion to California GDP in 2021. See Real Value Added to the Gross Domestic Product of California in the United States in 2022, by Industry, Statista, https://www.statista.com/statistics/304869/california-real-gdp-by-industry/.

[164] No Remix: Copyright Act Preempts Right of Publicity Claim, JD Supra (Sep. 9, 2020), https://www.jdsupra.com/legalnews/no-remix-copyright-act-preempts-right-16729/.

[165] Id.

[166] Id.

[167] Id.

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