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Contracts and Poker: Right of Publicity

by Scott J. Burnham |  Published: Mar 11, 2020

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In a previous column, I began an analysis of the Participant Release and Confidentiality Form that players are required to sign when entering a World Series of Poker event, including circuit events and other events not played during the WSOP at the Rio. Let’s continue the discussion, noting again that none of the following constitutes legal advice, and if you have a question about a form you have signed, you should consult a lawyer.

Paragraph 1 deals with what is called the right of publicity. As discussed in the previous column, under copyright law, the “author” of the work has the right to claim copyright in it. So a photographer (or the photographer’s employer if the photo was taken in the course of employment) is the author of the photograph and has the right to claim copyright in it. But if the photograph contains an image of you, then you have the right, called the right of publicity, to keep the image from being used for commercial purposes.

This right goes way back. In 1902, a New York court ruled that a young woman did not have the right to keep her image off of an advertisement for flour. She lost the battle, but won the war when outrage over the decision led New York to enact the country’s first privacy law.

After explaining at length what uses it may make of your performance, Caesars gets you to release any right of publicity you have. Or more precisely, in legalese:

Player consents to being recorded, photographed, filmed and taped for the Works (including without limitation behind-the-scenes photography and film and audiotaped interviews with Player). Player further consents to CIE’s and its designees’ worldwide use and exploitation of Player’s name, voice, likeness, image, actions, statements, caricatures, nicknames, social media handles, signature, mannerisms, traits, speech, phrases, and other unique personal characteristics (collectively the “Player’s Likeness”) as they appear in the Works and as they appear in any photographs, films or other audio and/or visual works of past or future WSOP Events, and to disclosure of Player’s strategies and hole cards in the Works, and Promotions in perpetuity by any means and through any medium now known or hereinafter used – and without further authorization or compensation.

Whew! Do you like the parts about “without limitation,” “worldwide,” and “in perpetuity?” The part about “any medium now known or hereinafter used” is particularly good lawyering. There is often litigation about whether motion picture rights include television, DVDs, live streaming, etc., or whether book publishing rights include eBooks. Even though the release does not extend throughout the universe or until the end of time, this language should just about cover all the bases.

Is this part of the release valid? Probably. The law of publicity is state law, so what rights you have are up to each state. However, there is an interesting twist. The Release Form says that it is governed by the law of the state of Nevada. Let’s clear up one point of confusion. This “choice of law” clause does not mean you have to sue in Nevada. It means that the court of whatever state the claim is brought in is supposed to apply the law of Nevada instead of its own law. [The release does in fact also contain a “choice of forum” clause, specifying that you have to bring your claim in Clark County, Nevada, but that is another matter, to be discussed in a future column.]

It is generally permissible for parties to choose the law that governs their contract or release as long as the chosen law has some relationship to the transaction. The fact that CIE is located in Nevada is probably a sufficient basis. In Nevada, the law of publicity is found in a statute, specifically NRS 597.770. However, the statute states that its scope is limited to any commercial use within the state of Nevada. If I claim that my right of publicity was violated by a commercial use in Maryland, it may well be that the law of Nevada does not apply, so the court might apply other law.
Which state’s law governs your claim probably won’t make much difference, however, for most states recognize the right of publicity either by statute or by common law (decisions of the courts) – and also recognize your power to waive your rights.

A notorious example arose when people who were made fools of in the Borat movie claimed that their right of publicity had been violated. They probably had a stronger case than a poker player, for they claimed that they had been misled about the use that would be made of their appearances. You should have no such misconceptions. The motion picture company had been smart enough to get releases from every participant in which they waived any rights they had. Furthermore, the release had a choice of law clause specifying that New York law applied, and New York may well have the weakest protections for the right of publicity in the country. Thanks to a well-crafted release, Borat was “great success,” not just at the box office, but in the courts. ♠

Scott J. Burnham is Professor Emeritus at Gonzaga University School of Law in Spokane, Washington. He can be reached at profburnham@yahoo.com.