Right of publicity is a legal principle, recognized by approximately half of the fifty states, that protects individuals’ rights to their persona. In the most basic terms, it’s one of the laws that prohibits you from capitalizing on, say, DeadMau5’s brand without permission.
Where available, the right of publicity allows a person to control the use of their name, appearance and other distinguishing characteristics. Generally, the strongest right of publicity cases involve commercial exploitation; non-profit and political uses are often exempt.
Right of Publicity: Jurisdiction
Most right of publicity issues a state law issue. Many of these state statutes were adopted to address a perceived gap in individual privacy rights, while others were designed simply to codify and clarify existing common law doctrines.
In 1903, New York became the first state to specifically address the issue of an individual’s right to control the public use of their identity. NY’s early statute sparked enduring controversy, but despite sustained criticism, an increasing number of states now recognize the right of publicity.
Right of Publicity: Restatement of Torts
Many states don’t protect the right of publicity by name, instead permitting lawsuits under the right to privacy or the doctrine of unfair competition.
The Restatement of Torts recognizes four types of invasion of privacy:
- intrusion upon seclusion, which involves improper invasion of another’s personal life;
- appropriation of name or likeness, which involves use of another’s identity for personal gain;
- publicity given to private life, which requires the publication of private information that is not of genuine interest to the public in a manner that would be highly offensive to a reasonable person;
- false light, which involves portraying an individual in a misleading manner. Of these four, the tort of appropriation most closely resembles the doctrine of the right of publicity.
Right of Publicity: Legally Speaking
According to the Restatement, individuals have the exclusive right to any beneficial use of their identity. One justification for this rule is the emotional harm that stems from seeing one’s identity misappropriated. However, the Restatement does not call for the creation of a cause for action for emotional damage; instead, it grants to every individual a property right in their own identity.
This is an important distinction, as it permits individuals to sell or license the right to their identity and likeness.
Right of Publicity: Options For Individuals In States Without Publicity Rights Laws
In states which do not protect the right of publicity, individuals may still be able to rely on the doctrine of unfair competition to prevent unauthorized use of their identity.
The law of unfair competition addresses unfair or deceptive businesses practices designed to harm competitors. Applied to the right of publicity, many state courts permit lawsuits for unfair competition based on misappropriation of an individual’s identity, if the name or likeness is being used in a way that it is likely to deceive consumers. For example, if a local computer company were to begin shipping computers labeled “The Bill Gates Computer,” most courts would conclude that the company had engaged in unfair competition.
There are two other methods commonly used to prevent the misappropriation of identity. If a name or likeness is sufficiently recognizable and already in commercial use, the individual’s identity may be entitled to protection as a trademark. Alternatively, a federal statute known as the “Lanham Act,” found at 11 U.S.C. § 1125, may be used to prevent unauthorized use of a person’s likeness.
Right of Publicity: The Push To Make It A Federal Statue
Due to the variations in states’ right of publicity statues, some scholars argue that the federal government should adopt a statute to ensure uniformity. Associations of patent and trademark attorneys have suggested that since there are similarities between trademark law and the right of publicity, existing intellectual property laws should be modified to recognize the right of publicity.
Nevertheless, the right of publicity is supported by different social policies than trademark laws, and attempts to combine the two have been unsuccessful.
While a comprehensive federal right of publicity statute may appear in the future, at this time, those interested in protecting their exclusive right to control their name and likeness must negotiate the maze of state statutes and legal precedence.