Kentucky: Statutory Civil Law

  1. Right of Publicity

    1. Introduction

      A WMC victim could try to use the statutory right of publicity to prevent someone from using his or her likeness for a commercial purpose without his or her knowledge or permission. Also, in Kentucky, the right of publicity continues post-mortem, so a victim’s estate could pursue a claim if the alleged exploitation is occurring after the victim’s death.

    2. Text of the Statute(s)

      • KY. REV. STAT. § 391.170 (Commercial rights to use of names and likenesses of public figures)

        (1) The General Assembly recognizes that a person has property rights in his name and likeness which are entitled to protection from commercial exploitation. The General Assembly further recognizes that although the traditional right of privacy terminates upon death of the person asserting it, the right of publicity, which is a right of protection from appropriation of some element of an inpidual’s personality for commercial exploitation, does not terminate upon death.

        (2) The name or likeness of a person who is a public figure shall not be used for commercial profit for a period of fifty (50) years from the date of his death without the written consent of the executor or administrator of his estate.

    3. Cases

      1. Montgomery v. Montgomery, 60 S.W.3d 524 (Ky. 2001)

        • Procedural Posture: Petition for review to the Supreme Court to consider the applicability of the statutory right of publicity.

        • Law: KY. REV. STAT. § 391.170

        • Relevant Facts: Plaintiff Barbara Montgomery, acting as personal representative for the estate of her late husband Harold Montgomery, sued John Michael Montgomery, Harold’s son from a previous marriage, alleging that he violated Harold’s common-law and statutory right of publicity by using Harold’s voice and likeness in a music video. During his life, Harold was an amateur musician and songwriter, but he rarely appeared outside of Kentucky to perform. His son, defendant John Michael, is a nationally-known country music star. John Michael’s fourth album included a tribute to Harold and a music video was recorded shortly thereafter, featuring Harold singing, Harold’s gravestone, and photos of Harold with and without John Michael. John Michael did not get permission from his father’s estate to reproduce the images or vocals in the video. The lower court concluded that Harold was not a “public figure,” because he had not achieved “celebrity status” in his lifetime. The appeals court affirmed the lower court’s determination that the right of publicity is not inheritable but improperly assumed that the right of publicity was subsumed in the appropriation prong of the right of privacy. The court of appeals formulated its own broader definition of “public figure,” but ultimately found that Harold’s name and likeness had no significant commercial value. The Kentucky Supreme Court considered Barbara’s claim and evaluated the proper construction of the civil statute.

        • Outcome: The court affirmed the decisions by the lower courts based on its determination that John Michael’s music video was protected free expression under the First Amendment: “The fact that a person’s likeness is used in a constitutionally-protected work to create or enhance profits does not make the use actionable. Nor does the use of that person’s name or likeness in an advertisement or promotion for the underlying work infringe upon a person’s right of publicity. To put it another way, John Michael—without either the consent or approval of Harold’s estate—could have produced a film biography of his father and promoted the film using Harold’s name and likeness without violating Harold’s estate’s right of publicity (assuming it exists under the statute). He can do the same in a music video.”1

        • Special Notes: Although the right at issue was statutory, the court referred to the common-law right of publicity and related cases in its analysis, explaining that “we believe that many of the principles of the common-law right of publicity” could be used to properly construe KRS 391.170.2 The dissent disagreed with the majority opinion because it found that the facts needed to be thoroughly analyzed to adequately determine whether Harold was a “public figure”: “In my opinion, the trial court’s restrictions on Appellant’s access to discovery materials relating to the marketing and production of music videos possibly prevented the Appellant from obtaining relevant evidence concerning Harold Montgomery’s commercial value. . . I believe that Appellant should be permitted the opportunity for full discovery to see whether they can produce evidence sufficient to create a genuine issue of material fact as to whether Harold Montgomery’s name and likeness possessed significant commercial value.”3

    1. Montgomery v. Montgomery, 60 S.W.3d 524, 530 (Ky. 2001).
    2. Id. at 528.
    3. Id. at 532 (Keller, J., dissenting).
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