The Right of Publicity is most commonly defined as the right of every
individual to control the commercial use of his or her name, image, likeness, or
some other identifying aspect of identity. The Right of Publicity can be
referred to as "publicity rights" or even "personality
rights." The term of art "Right of Publicity" was coined by Judge
Jerome Frank in the 1953 case Haelan Laboratories, Inc. v. Topps Chewing Gum,
Inc., 202 F.2d 866 (2d Cir.).
The extent of recognition of this right in the U.S. is largely driven by
statute or case law. Because the Right of Publicity is governed by state (as
opposed to Federal) law, the degree of recognition of the Right of Publicity
varies significantly from one state to the next. To date, twenty-eight states
are on record as recognizing the Right of Publicity. Indiana is believed to have
the most far-reaching Right of Publicity statutes in the world, providing
recognition of the right for 100 years after death, and protecting not only the
usual "name, image and likeness," but also signature, photograph,
gestures, distinctive appearances, and mannerisms. There are other notable
characteristics of the Indiana law, though most of the major movement in Right
of Publicity emanates from New York and California, with a significant body of
case law which suggest two potentially contradictory positions with respect to
recognition of the Right of Publicity.
A commonly-cited justification for this doctrine, from a policy standpoint,
is the notion of natural rights and the idea that every individual should have a
right to control how, if at all, his or her Right of Publicity is commercialized
by third parties. Usually, the motivation to engage in such commercialization is
to help propel sales or visibility for a product or service, which usually
amounts to some form of commercial speech (which in turn receives the lowest
level of judicial scrutiny).
Personality rights are generally considered to consist of two types of
rights: the right to publicity, or to keep one's image and likeness from being
commercially exploited without permission or contractual compensation, which is
similar to the use of a trademark; and the right to privacy, or the right to be
left alone and not represent one's personality publicly without permission. In
common law jurisdictions, publicity rights fall into the realm of the tort of
passing off. United States jurisprudence has substantially extended this right.
