Right to Publicity

Posted on January 19, 2009

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The right of publicity is generally defined as an individual's right to control and commercially exploit his or her name, likeness and persona for profit.  The right is generally invoked in the context of commercial speech, when a company has used a public figure’s name, likeness or persona in connection with a product and created a false and misleading impression that the public figure is endorsing the product.
Contrary to popular belief, publicity and privacy rights are not governed by federal law, but are instead the subject of state laws, and the degree of recognition of the right of publicity varies from state to state.  To date, around half of the states are on record as recognizing the right of publicity. (See Right of Publicity: An Overview).  The other states do not recognize these rights, or they are recognized under other theories such as misappropriation and false representation. As such, one will need to look closely at their state law to see if and how their courts have interpreted and applied the right to privacy.

The right of publicity is limited as it relates to politicians or other prominent figures, however, because it comes into conflict with the First Amendment, where it states “Congress shall make no law… prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press…” (See First Amendment).  Under the First Amendment, the public has a right to speak about- and mock- its leaders.  Our President-Elect, Barak Obama, may face the same problem of having limited rights over use of his name, as was reported on NPR on January 12, 2009.  (See "Obama May Have Few Rights Over Use of His Name").  As intellectual property attorney Margaret Esqueret states in the NPR piece, Obama holds himself out as a “man of the people” and, as such, his right to publicity may be even more limited. (Id.)

Mrs. Esqueret states that important questions to ask when looking at use by a third party of Obama’s name or likeness are (i) are the uses covered by the First Amendment or (ii) are they strictly commercial uses?  If the uses are in any way covered by the First Amendment, then the politician or prominent figure will typically lose.  An example of this would be items that serve as political commentary.  If the use is deemed to be strictly commercial, however, then the question becomes would the consuming public believe that Obama and/or the government endorsed the image?  An example of this might be his image on a food product.  Obama may be able to stop such commercial use of his name or likeness. 

The politician or public figure may be able to utilize other avenues to protect his or her name or likeness.  For example, sometimes a public figure can protect his image with a cease and desist letter or by threatening a lawsuit.  If the letter is sent to a smaller company, then they may not want to risk fighting against the public figure’s legal team. 

Commercialization of celebrity and politician personas has exploded in recent years, making the right to publicity all the more important.  The exact contours of protection under this theory will continue to be redefined by the states that currently have laws in place, and the other states may choose to recognize the right to publicity and define their own policies.

Elizabeth Ritter, Goodrich Law Firm, LLC

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