Legal Question in Intellectual Property in Missouri

Re: Can performer sue a fan magazine to make it stop publishing that star's phot

Recording artists are in general public figures and as such they have rights of privacy and rights of publicity. They can prohibit photographs of themselves being published or used without their permission.

Re: Can performer sue a fan magazine to make it stop publishing that star's phot

Yes, but in Missouri such a suit might not be successful if vigorously defended by the fan magazine. Missouri recognizes a right of privacy in performing celebrities, and since Branson is in Missouri country artists may get special treatment by Missouri judges and juries who want to keep Branson performers content with Missouri. However, Missouri's most recent case on the subject, just decided July 23rd of this year (2002) went AGAINST the celebrity (Tony Twist) who lost his suit against the Spawn comic books which used a character named Tony Twist admittedly based on Tony Twistis reputation as an NHL "enforcer". So, in Missouri, the right of privacy is with certain First Amendment exceptions such as newsphotos, critical comment, and the like. The photos you describe are being used for commercial purposes (a for-profit fan magazine) it appears, although they might be merely for purposes of news, such as reporting that a concert took place. A disclaimer as to any association with the performer and a disclaimer as to any sponsorship by or authorization from the artist might pacify the artist, although perhaps not. I suggest you consult with a copyright lawyer licensed in Missouri. I can help in that regard for a fee.

The right of publicity (even for non-celebrities), in Missouri, dates back at least to 1911 and was just reiterated on July 23, 2002 in the Tony Twist v. TCI et al case (wich Tony lost.)

In Munden v. Harris, 134 S.W. 1076 (Mo.App. 1911), a jeweler published an advertisement containing the picture of a five-year-old next to a caption that invites the reader to buy jewelry. Id. at 1077. The child's parents sued the advertiser for invasion of privacy for publishing his picture in an advertisement without his consent. Id. The Court of Appeals held that "one has an exclusive right to his picture, on the score of its being a property right of material profit." Id. at 1079. The court then allowed the plaintiff to go forward to show both damages to his reputation and feelings, as well as for any value that the defendant derived from the unauthorized use of the child's identity in advertising its goods. Id. at 1079, 1081.

The attempt to get an injunction against your fan magazine is less likely to be successful for the artist, however, because courts do not like prior restraints on free speech. Instead, the courts may well hold that no injunction is proper and the artist will have to prove damages suffered by the artist and seek to recover such damages, if any. In that case, the artist might fail to prove any compensable harm.

Bottom line. This is not a slam dunk case for the artist, so you have some maneuvering room. But, you need expert legal assistance to minimize your liability and to maximize your chances of avoiding a suit.