Sociology Index

Right of Publicity

The right of publicity is one of the new intellectual property rights that has developed over the past fifty years under state common law. The right of publicity is very similar to the tort of appropriation. One can protect the right of publicity by bringing an action for the tort of misappropriation or for a wrongful attempt to "pass off" a product as endorsed by an individual or produced by an individual. The right of publicity varies from state to state but either common law or statutory law protects certain individuals from the unauthorized exploitation of their identity. Many states do not recognize the right as the Right of Publicity, but protect it as part of the Right of Privacy. Right of Publicity can also be protected through the law of unfair competition.

The right of publicity grants property rights to everyone, allowing each person to control the commercial use of his or her identity. The right of publicity has been particularly valuable to celebrities in exploiting the economic value in their identities. The Right of Publicity prevents the unauthorized commercial use of an individual's name, likeness, or other recognizable aspects of one's persona. The "right of publicity" has grown to include the potential misappropriation of voice, performance style, former names, and maybe, even the image of an animal. Right of Publicity gives an individual the exclusive right to license the use of their identity for commercial promotion.

The first case to recognize the "right of publicity" was Haelan Laboratories Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866, 868 (2d Cir.), cert. denied, 346 U.S. 816 (1953). The Court in Haelan recognized the value of and property right in a baseball player's photograph used on trading cards. Only a few states have distinctly recognized a Right of Publicity. In California, for example, the right of publicity is protected both by statute and common law. Where recognised, right of publicity is a descendible and assignable property right. The unauthorized appropriation of an individual's identity is considered an invasion of the right of privacy. California provides that the right of publicity is descendible for a period of 50 years after death. Tennessee provides protection for as long as the right holder continually exploits the commercial value of the identity.

Books On Right Of Publicity

Right of publicity in the global market: Is James Dean a living dead even in Korea? Hyung Doo Nam.

A tale of two cases: right of publicity versus the First Amendment. : An article from: Communications and the Law. Sharlene A. McEvoy, William Windom.

Rights of publicity and copyright law.(Law of the Line) : An article from: Hawaii Business. Robert Carson Godbey.

An athlete's right of publicity: An article from: Florida Bar Journal, Brian M. Rowland.

The Rights of Publicity and Privacy. J. Thomas McCarthy.

The Commercial Appropriation of Personality. Huw Beverley-Smith, William R. Cornish, F Dessemontet, Paul Goldstein, Robin Jacob.

Tiger's paper tiger: The endangered right of publicity: An article from: Washington and Lee Law Review - David J Michnal.

How to use images legally: A handbook on public domain, copyright law, right to publicity, trademark law, underlying rights, and other intellectual property rights issues related to still & motion images - Scott Tambert.