Historical background[edit | edit source]

The right of publicity was essentially an outgrowth of the right of privacy in the United States,[1] and is still often referred to as a "subset" of privacy rights. Generally, the right of publicity is the right of individuals, particularly celebrities, to control how others use their names, images, nicknames and voice. In some jurisdictions, it only applies to commercial advertising. In others, it is broader, and applies to any commercial exploitation.

By the broadest definition, the right of publicity is the right of every individual to control any 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 Haelan Labs., Inc. v. Topps Chewing Gum, Inc.[2] The Second Circuit concluded a right of publicity was necessary because:

many prominent persons (especially actors and ball-players), far from having their feelings bruised through public exposure of their likenesses [as in a right of privacy claim], would feel sorely deprived if they no longer received money for authorizing advertisements, popularizing their countenances, displayed in newspapers, magazines, busses, trains and subways. This right of publicity would usually yield them no money unless it could be made the subject of an exclusive grant which barred any other advertiser from using their pictures.[3] This right is so named for the value generated by the publicity associated with a person's likeness.[4]

The extent of recognition of this right in the United States is largely driven by statute or case law. Because the right of publicity is governed by state law[5] (as opposed to federal law), the degree of recognition of the right varies significantly from one state to another. To date, twenty-eight states have recognized the right, either in their case law, by statute or both.

Only Nebraska and New York expressly rejected a common law right to publicity, but both of those states later recognized a right to publicity with statutory enactments. J. Thomas McCarthy, The Rights of Publicity and Privacy, §§6.1-6.3 (2d ed.). In fact, of the United States territories, only Puerto Rico currently rejects the right to publicity. Guedes v. Martinez, 131 F.Supp.2d 272 (D.P.R. 2001).[6]

Rationale for recognizing a right of publicity[edit | edit source]

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 "persona" 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 protection). Many commentators consider the right of publicity to be a property right, as opposed to a personal right.

Requirement of celebrity[edit | edit source]

There appears to be a split of authority over whether being a celebrity is a prerequisite to bringing a right of publicity claim. The right of publicity is sometimes restricted to celebrities.[7] “However, it should also be noted that other courts and commentators as well have found that ‘non-celebrities should also be permitted to recover upon proof that the appropriated identity possessed commercial value.’”[8] In the latter viewpoint, the notoriety of the plaintiff is relevant to damages rather than liability. [9]

Right of publicity under California law[edit | edit source]

California recognizes two causes of action based on rights of publicity. The first is a common law right that has been recognized since 1931.[10] The elements of this right are:

  1. the defendant's use of the plaintiff's identity;
  2. the appropriation of plaintiff's name or likeness to defendant's advantage, commercially or otherwise;
  3. lack of consent; and
  4. resulting injury.[11]

The common law right also requires that this right "be balanced against the public interest in the dissemination of news and information consistent with the democratic processes under the constitutional guaranties of freedom of speech and of the press."[12]

In addition, California has a statutory right, codified at California Civil Code §3344 ("Section 3344"). Section 3344 provides:

Any person who knowingly uses another's name . . . photograph, or likeness, in any manner, on or in products, merchandise, or goods, . . . without such person's prior consent, . . . shall be liable for any damages sustained by the person or persons injured as a result thereof.

For purposes of the statute, a use of a name, image and likeness in connection with any news or public affairs broadcast does not constitute a use for which consent is required.[13] Additionally, the section does not apply to the owners or employees of any medium used for advertising, unless the owners or employees have knowledge of an unauthorized use.[14]

References[edit | edit source]

  1. See, e.g., ETW Corp. v. Jireh Pub., Inc., 332 F.3d 915, 928 (6th Cir. 2003) (full-text).
  2. 202 F.2d 866 (2d Cir.) (full-text), cert. denied, 346 U.S. 816 (1953).
  3. Id. at 868.
  4. See, e.g., ETW Corp., 332 F.3d at 929.
  5. C.B.C. Distrib. and Marketing, Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818, 822 (8th Cir. 2007) (full-text) (citing Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 566 (1977) (full-text)).
  6. Bosley v. Wildwett.com, 310 F.Supp.2d 914, 935 (N.D. Ohio 2004).
  7. See, e.g., Martin Luther King, Jr., Center for Social Change, Inc. v. American Heritage Products, Inc., 694 F.2d 674, 676 (11th Cir. 1983) (“The right of publicity may be defined as a celebrity's right to the exclusive use of his or her name and likeness.”); Carson v. Here's Johnny Portable Toilets, Inc., 698 F.2d 831, 835 (6th Cir. 1983) (internal citations omitted) (“The right of publicity has developed to protect the commercial interest of celebrities in their identities.”).
  8. ETW Corp., 332 F.3d at 953 (internal citations omitted).
  9. See id.
  10. Gionfriddo v. Major League Baseball, 94 Cal.App.4th 400, 408, 114 Cal.Rptr.2d 307 (Cal. App. 2001).
  11. Id. at 409, 114 Cal. Rptr. 2d 307.
  12. Id. (citations omitted).
  13. Cal. Civ. Code § 3344(d).
  14. Id. §3344(f).

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