11 - THE RIGHT OF PUBLICITY

Summary

Introduction

The “Right of Publicity” is a fascinating legal topic. The cases on this issue tend to be extremely entertaining because the right of publicity is available only to those whose identities have publicity value – that is, the famous.

The “right of privacy” and the “right of publicity” are different. The right of privacy primarily prevents intrusion into a person's “private” life; financial loss is irrelevant to an individual's ability to sue. The right of publicity protects against financial loss through appropriation of a person's identity.

The right of publicity is protected in a minority of states. Sometimes it is protected through the common law. In some states it is protected by statute. While not every state explicitly recognizes the right of publicity, similar – although not identical – protections can be obtained in all states via the Lanham Act, the federal law that governs trade practices and, among other things, prohibits false endorsements. Note that, as usual, caution must be exercised in assessing possibilities regarding recovery under the right of privacy in cyberspace because of the borderless nature of the Net. To be on the safe side, abide by the laws as applied in the most restrictive jurisdiction.

The right of publicity is not absolute. There are First Amendment exceptions for use of a person's name or likeness (or identity) for the purposes of news reporting, political commentary, satire, or parody. The question is one of balancing a person's right of publicity against the need for free expression.