Right of Publicity - First Amendment Protection

FOR IMMEDIATE RELEASE
Safdarjung, Delhi, India, Republic of (Free-Press-Release.com) February 2, 2011 -- The right of publicity is generally defined as an individual’s right to control and profit from the commercial use of his/her name, likeness and persona, which shall be referred to in this article as the “individual’s identity”. Protecting the individual from the loss of commercial value resulting from the unauthorized appropriation of an individual’s identity for commercial purposes is the principle purpose of this body of law.

Uniform federal law does not currently protect the individual’s right of publicity but there have been increasing demands for a federal right of publicity law. Therefore, the right of publicity currently varies from state to state but either common law or statutory law in almost every state protects certain individuals from the unauthorized exploitation of their identity. While in some states the right of publicity is only applicable to a celebrity or public personality there are other states where the right of publicity applies to any individual. However, in a number of states the individual’s right of publicity is only protected when the misappropriation of the individual’s identity has publicity value – meaning that the individual has previously commercially exploited his/her identity. States have also reached different conclusions regarding whether the right of publicity survives the death of an individual. Generally, in those states that permit survivability it is only permitted for celebrities but even these states differ on how long the right of publicity survives for the deceased celebrity.

Some commentators and states still continue to refer to the unauthorized appropriation of an individual’s identity as an invasion of the right of privacy. However, these two bodies of law are usually distinguished as follows. While the right of publicity provides the individual with a property right in his/her identity, the right of privacy protects an individual from the emotional anguish resulting from the publication of private facts that are embarrassing, intimate or portray someone in a false light that is highly offensive. The right of publicity must also be distinguished from defamation in that defamation involves the publication of untruthful information while right of publicity claims usually result from the publication of truthful information.

Who is a Celebrity or Public Personality?

It should not be surprising that most cases involving right of publicity claims involve celebrities or public personalities however; this is probably more a condition of the economics of litigation than the legal rights involved. Any definition of the term “celebrity” is not definitive and is necessarily vague. Frequently a celebrity is defined as a “famous or well-known person”. But what determines whether an individual is a well-known or famous person? Some of the difficulties in establishing whether one is a celebrity and therefore protected by the right of publicity include the following. (1) Timeframe – if you are recognized as a celebrity do you always remain a celebrity? (2) Location – if you are recognized as a celebrity in Brazil does that mean you are also a celebrity in the United States? What if you are famous in Colorado does that mean you are famous throughout the United States? (3) Taste – if you are recognized as a celebrity in classical music circles what is your status according to rock music fans? (4) Professional or business specialty, if you are a famous medical doctor, author or artist, does this mean you are a celebrity outside your specialty?

First Amendment Protection

The law attempts to strike a balance between an individual’s right of publicity and free speech rights to permit specific uses of an individual’s identity. One serious difficulty with relying upon First Amendment protection is the legal unpredictability of First Amendment rules. The First Amendment provides a hierarchy of protection under the newsworthiness exception depending upon how the individual’s identity is being used. The greatest protection is provided for news, lesser protection is provided for entertainment and fiction and the least protection is available for advertising uses where a portrayal of a real person’s identity is used to sell a product or service.

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