South Dakota enacted its first right of publicity law in 2015 which preempts any common law right of publicity in that state. It is not yet clear whether it will have any effect on the privacy-based appropriation tort in the state.
South Dakota recently enacted its first right of publicity law to “prohibit the unauthorized commercial use of a personality’s right of publicity.” The statute provides for $1,000 in statutory damages, in addition to other possible relief.
South Dakota’s statutory right expressly excludes any common law claims “regarding a misappropriation of name, image, or likeness of a personality.” This potentially allows privacy-based misappropriation claims for non-personalities.
South Dakota has recognized a right to privacy and the appropriation branch of that tort as developed in the Restatement (Second) of Torts. It is not clear what preemptive effect, if any, the new right of publicity statute will have on the appropriation branch of the right to privacy.
The statutory right prohibits the use of a person’s identity for seventy (70) years after death. The statute says it applies to those deceased prior to July 1, 2015. To succeed with a claim, successors must register their interest with the state.
Presumably, the statute is also intended to apply to those who die after July 1, 2015, but the statute is ambiguous on this point. The statute also does not appear to limit post-mortem rights to those who die as domiciles of South Dakota.
The statute is limited to “personalities” who are individuals who have a “name, voice, signature, photograph, image, likeness, distinctive appearance, gesture, or mannerism” that has a “commercial value.” The person need not commercially exploit that value to bring a claim. No court has yet interpreted the statute, but it is possible that it will be interpreted as some other courts and states have to include claims by individuals who do not have an independent commercial value outside of the fact of the use itself.
The statute is quite broad in its coverage and includes uses of a person’s “name, voice, signature, photograph, image, likeness, distinctive appearance, gesture, or mannerism,” suggesting that virtually anything that evokes the person’s identity may fall within the statute’s sweep.
Uses in literary, theatrical, musical, audio-visual, film, radio, and television works.
In the context of defenses to appropriation claims under the rubric of the right to privacy, the state has recognized a newsworthiness and public interest defense.
South Dakota sits in the Eight Circuit Court of Appeals. In C.B.C. Distribution & Marketing, Inc. v. Major League Baseball Advanced Media, L.P., 503 F.3d 818 (8th Cir. 2007), the Eighth Circuit applied a balancing test and held that the use of players’ names and statistics by a fantasy sports league was protected by the First Amendment against a claim under Missouri’s right of publicity.