Right of Publicity

Right of Publicity refers to the personal right to charge for (or bar) the use of one's name or likeness in commercial advertising or for any other commercial purpose. It evolved out of the Right of Privacy and is often referred to as a "subset" of the Right of Privacy. Athletes and celebrities can make as much as several hundred million dollars a year from exploitation of their Right of Publicity.

Publicity rights

The right of publicity evolved out of the right of privacy in the U.S., and is still often referred to as a "subset" of privacy rights. Roughly defined, it is the right to charge for (or bar entirely) the commercial exploitation of name, likeness, voice or "personality" in commercial advertising. More broadly defined, the right of publicity is the right of every individual to control the commercial use of his or her name, image, likeness, or some other identifying aspect of identity, limited (under U.S. law) by the First Amendment. The right of publicity can be referred to as publicity rights or even personality rights. The term "right of publicity" was coined by Judge Jerome Frank in the 1953 case Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir.).

Uniform federal law does not currently protect the individual's right of publicity but there have been increasing demands for a federal right of publicity law. Therefore, the right of publicity currently varies from state to state but either common law or statutory law in almost every state protects certain individuals from the unauthorized exploitation of their identity. While in some states the right of publicity is only applicable to a celebrity or public personality there are other states where the right of publicity applies to any individual. However, in a number of states the individual's right of publicity is only protected when the misappropriation of the individual's identity has publicity value - meaning that the individual has previously commercially exploited his/her identity. States have also reached different conclusions regarding whether the right of publicity survives the death of an individual. Generally, in those states that permit survivability it is only permitted for celebrities but even these states differ on how long the right of publicity survives for the deceased celebrity.

To date, twenty-eight states are on record as recognizing the Right of Publicity. Indiana is believed to have the most far-reaching Right of Publicity statutes in the world, providing recognition of the right for 100 years after death, and protecting not only the usual "name, image and likeness," but also signature, photograph, gestures, distinctive appearances, and mannerisms. There are other notable characteristics of the Indiana law, though most of the major movement in Right of Publicity emanates from New York and California, with a significant body of case law which suggest two potentially contradictory positions with respect to recognition of the Right of Publicity.

A commonly-cited justification for this doctrine, from a policy standpoint, is the notion of natural rights and the idea that every individual should have a right to control how, if at all, his or her Right of Publicity is commercialized by third parties. Usually, the motivation to engage in such commercialization is to help propel sales or visibility for a product or service, which usually amounts to some form of commercial speech (which in turn receives the lowest level of judicial scrutiny).

Personality rights are generally considered to consist of two types of rights: the right to publicity, or to keep one's image and likeness from being commercially exploited without permission or contractual compensation, which is similar to the use of a trademark; and the right to privacy, or the right to be left alone and not represent one's personality publicly without permission. In common law jurisdictions, publicity rights fall into the realm of the tort of passing off. United States jurisprudence has substantially extended this right.


References

www.entertainmentlawdirectory.com - Articles on the Right of Publicity compiled in Entertainment Law Directory