Right of Publicity
Very similar to the tort of appropriation, the right of publicity is a relatively new intellectual property right that has developed over the past fifty years.under state common law. The right of publicity grants property rights to everyone, allowing each person to control the commercial use of his or her identity. But 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. 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.
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.