Can Public Figures Protect Their Iconic Gestures and Movements?

By Lcda. Melissa Bayona-Torres, Ferraiuoli LLC

Public figures and celebrities often adopt gestures or movements that become an identifying element of their persona. For example, Michael Jackson's "moonwalk," Nusret Gökçe's (better known as "Salt Bae") distinctive way of seasoning meat, Stephen Curry's "Night, Night" gesture, and Usain Bolt's "To Di World" or "Bolting" pose. Can these gestures or movements be protected by celebrities or public figures to the extent that they can prevent third parties from using them for commercial purposes?

Self-Image Rights

Self-image rights protect a person's image and likeness from unauthorized use by third parties for commercial purposes. In the United States, there is no federal law governing self-image rights. Instead, these rights are governed by the laws of the individual states and territories. As a result, the scope of self-image rights can vary depending on the jurisdiction.

Some states, such as Indiana and North Dakota, explicitly include gestures or movements as part of the definition of self-image. However, other states do not. In Puerto Rico, the Self-Image Law defines image as "the name, photograph, portrait, voice, signature, attribute, or any representation of a person that serves to identify that person before an average observer or listener, by means of any reproduction procedure or technique." Because the Self-Image Law does not explicitly include gestures or movements, it is necessary to evaluate on a case-by-case basis whether a particular gesture or movement is part of a person's image.

There is limited case law on this issue in Puerto Rico. However, courts in the United States have held that celebrities or public figures can have a right to prevent others from using their gestures or movements for commercial purposes if the gesture or movement is sufficiently distinctive and has become associated with the celebrity or public figure in the minds of the public. For example, in Lombardo v. Doyle, Dane & Bernbach, Inc., the Supreme Court of New York held that a celebrity orchestra conductor had a right to prevent others from using his gestures and music in a television commercial.

Trademark Rights

Ordinarily, gestures, poses, or movements of individuals do not qualify for trademark protection. However, if a gesture or movement is used in connection with the commercial sale of goods or services, and it is distinctive enough, it may be eligible for trademark protection. For example, Usain Bolt has applied to register his "Bolting" pose as a trademark for a variety of goods, including clothing, accessories, shoes, bags, jewelry, games, and restaurants.

In contrast, the famous "Salt Bae" has applied to register his iconic salt-sprinkling movement as a trademark for services related to providing food and beverages, restaurants, cafes, and other services in the restaurant and food industry. However, the USPTO has rejected the application, stating that the movement does not function as a trademark to identify the services indicated in the application. The examiner reasoned that consumers would not recognize the movement as the source of the services, as it is simply a common way of sprinkling salt on food.

The Salt Bae case is still pending, and the applicant has the opportunity to appeal the rejection. However, the decision of the USPTO examiner suggests that it may be difficult for celebrities or public figures to register their gestures or movements as trademarks, even if the gestures or movements are distinctive and have become associated with the celebrity or public figure in the minds of the public.

Overall, the law on self-image rights and trademark rights for gestures and movements of celebrities or public figures is complex and evolving. It is important to consult with an attorney to determine whether a particular gesture or movement is protectable under the law.

This article was originally published in Spanish in Microjuris on June 21, 2023.