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.

It 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. 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. 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. 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.

Many states do not recognize the right as the Right of Publicity, but protect it as part of the Right of Privacy. The unauthorized appropriation of an individual's identity is considered an invasion of the right of privacy.

The Restatement Second of Torts recognizes four types of invasions of privacy: intrusion, appropriation of name or likeness,unreasonable publicity and false light.

Right of Publicity can also be protected through the law of unfair competition.

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 extended form of passing off is used by celebrities as a means of enforcing their personality rights in common law jurisdictions. Common law jurisdictions (with the exception of Jamaica) do not recognise personality rights as rights of property. Accordingly, celebrities whose images or names have been used can successfully sue if there is a representation that a product or service is being endorsed or sponsored by the celebrity or that the use of the likeness of the celebrity was authorised when this is not true.

Books On Right Of Publicity

Intellectual Property Rights

The right of publicity in the global market: Is James Dean a living dead even in Korea? (Paperback) (March 18, 2006) by Hyung Doo Nam

A tale of two cases: right of publicity versus the First Amendment. : An article from: Communications and the Law [HTML] (Digital)
by Sharlene A. McEvoy, William Windom
Excerpt. © Reprinted by permission. All rights reserved.
There has long been a dispute about the extent to which a celebrity's likeness can be used by an artist for profit without providing compensation to the celebrity. The use of such likeness (even after death) has been litigated in several cases (1) and the issue has been raised anew in a recent case, ETW Corp. v. Jireh Publishing, Inc., (2) that involved the use of the image of golfer Tiger Woods, the first African-Asian-American to win the Masters.

Rights of publicity and copyright law.(Law of the Line) : An article from: Hawaii Business [HTML] (Digital)
by Robert Carson Godbey
Excerpt. © Reprinted by permission. All rights reserved.
Copyright law protects a work of authorship fixed in a tangible medium. For example, copyright law protects the rights of a photographer when he or she takes a photograph. There can be significant artistry in the photographer's work that is protected by copyright law, even if the photographer did not create the face or landscape that is the subject of the photograph.
Individuals have both a right of privacy and a right of publicity in the use of their image for commercial purposes. These rights are significantly different from the copyright rights of the photographer and protect different legal interests. These rights allow an individual to control how his or her identity and likeness can be used for...

An athlete's right of publicity. (Entertainment, Arts and Sports Law). : An article from: Florida Bar Journal [HTML] (Digital)
by Brian M. Rowland
Excerpt. © Reprinted by permission. All rights reserved.
One of the more valuable assets a celebrity-athlete may possess is his or her identity or persona. (1) This asset may be of considerable and lasting value, because when one's ability to play the game wanes, the marketing power of one's persona might not. Stars like Arnold Palmer, Peggy Fleming, Richard Petty, Martina Navratilova, and George Foreman continue to appear in endorsement advertisements long after their peak performing days in sports are over. Meanwhile, past sports figures like "Shoeless" Joe Jackson, Vince Lombardi, and Dale Earnhardt continue to have significant marketing value after their deaths. How does one protect the use of his or her persona from wrongful appropriation? What limits apply to that protection?

The Rights of Publicity and Privacy (2 Volume Set) 2nd edition (March 2000)
by J. Thomas McCarthy

The Commercial Appropriation of Personality (Cambridge Studies in Intellectual Property Rights)
by Huw Beverley-Smith, William R. Cornish (Series Editor), Fran‡ois Dessemontet (Series Editor), Paul Goldstein (Series Editor), Robin Jacob (Series Editor)
'The book is useful for any student of the law, for academics and judges, as well as for practitioners, including the generalist or even the specialist in another field. Its value lies beyond the insight it provides into this interesting, specialist, developing area of the law. It is a blueprint for the study of any area of common law that is being radically adapted and developed to meet new technological, economic and cultural changes.' Entertainment Law Review
Commercial exploitation of attributes of an individual's personality (name, voice and likeness) is characteristic of modern advertising and marketing. This volume provides a framework for analyzing the disparate aspects of the commercial appropriation of personality and traces its discrete patterns in the major common law systems. It considers whether a coherent justification for a remedy may be identified from a range of competing theories. Tiger's paper tiger: The endangered right of publicity : An article from: Washington and Lee Law Review [HTML] (Digital)
by David J Michnal
Inspired by Tiger Woods's phenomenal victory in the Masters golf tournament, painter Rick Rush began work on what became the subject of a bitter and costly lawsuit - a painting entitled The Masters of Augusta. Rush's publisher, Jireh Publishing, Inc., made over 5,000 copies of the painting and sold than to the public. Impelled by what he perceived to be the exploitation of his identity, Tiger Woods, via his marketing company, ETW Corp. filed suit in the US District Court for the Northern District of Ohio against Jireh, seeking an injunction and damages. Woods based his lawsuit, in part, on a rapidly evolving area of the law known as the "right of publicity." In its opinion, the court ruled that the First Amendment protected Rush and his assignee, Jireh, from Woods's right of publicity claim, allowing Jireh to copy and sell prints of Rush's painting without license from, or giving proceeds to, ETW. The court's decision was consistent with the trend toward broader First Amendment protection of artistic expression and the concomitant erosion in the value of publicity rights.
This digital document is an article from Washington and Lee Law Review, most recently published by Washington & Lee University, School of Law on September 30, 2001. The length of the article is 9672 words. The page length shown above is based on a typical 300-word page. The article is delivered in HTML format and is available in your Amazon.com Digital Locker immediately after purchase. You can view it with any web browser.

How to use images legally: A handbook on public domain, copyright, right to publicity, trademarks, underlying rights, and other intellectual property issues related to still & motion images
by Scott Tambert (Author)