The Right of Publicity provides to each and every person the right to use his or her persona for his or her benefit and provides a cause of action to stop the unauthorized use of that persona for commercial purposes.
This right is one of the many provided by the laws of unfair competition. Infringement of this right has become a frequently pleaded count made by attorneys who are trying to protect their clients from the unauthorized use of the client’s persona for commercial purposes. While the genesis of the right has been commonly thought to be a splintering from the Right to Privacy, which in turn owes its birth to an article in a Harvard Law Journal in 1890, it may be more accurate to say that it has long been a common law right and has a common origin in trademark law as a commercial fraud.
Originally, the Right of Publicity was thought to protect only the unauthorized use of a person’s name, likeness and image. Now, however, it is generally understood to encompass any personal attribute that identifies a particular person. For ease of discussion, that identity is referred to as the individual’s persona. The identifying attribute may be the individual’s name, likeness, image, voice, unique property identified with a person, or recognizable attire and “look,” unique to a person and by which he or she is known.
The use of the Right of Publicity as a separate count in a complaint has become sufficiently common that it can now be said that it has come of age. Of course, there are still those who refuse to accept that the right grew in an appropriate fashion, and consider it to be like Topsy, arriving without any identifiable parentage. Whatever its origin, the reality is that it is here and that, in the last ten years, it has been separately pled and discussed in at least seventy-five different reported federal court cases.
Webner, W. Mack and Lindquist, Leigh Ann
"Transformation: The Bright Line Between Commercial Publicity Rights and the First Amendment,"
Akron Law Review: Vol. 37
, Article 1.
Available at: http://ideaexchange.uakron.edu/akronlawreview/vol37/iss2/1