Rights of Publicity

The Right to One’s Own Identity

The Right of Publicity is a distinct area of intellectual property law that protects the inherent value of a person’s identity. Unlike the right to privacy, which protects a person from unwanted public intrusion, the right of publicity is a property right. It asserts that an individual, particularly a celebrity or public figure whose identity has commercial value, has the right to control and be compensated for the use of their ‘persona’ in advertising, merchandising, or any other commercial context.

Defining ‘Name, Image, and Likeness’

The scope of this right is broad and is designed to protect the various elements that make up a person’s public identity. This includes:

• Name: Both legal name and professional stage names.
• Image: Photographs, portraits, and other visual depictions.
• Likeness: This is a broader category that can include not just a person’s face, but also distinctive elements like their voice (as in cases involving voice-impersonating ‘sound-alikes’ in commercials), a well-known catchphrase, a signature pose, or even a famous character they portrayed.

For an actor, this right is fundamental to their career. It is the legal basis that requires a company to pay them for an endorsement deal, to license their photo for a movie poster, or to use their image on a lunchbox. It prevents unauthorized uses that could dilute their brand or create a false impression that they endorse a product.

Key Distinctions and Legal Landscape

It’s important to distinguish the Right of Publicity from other legal concepts:

• vs. Copyright: A photographer may own the copyright to a specific photo they took of an actor, giving them the right to control that photo’s reproduction. However, the actor still owns the right of publicity in their own likeness depicted in the photo. Both rights must be cleared for a commercial use.
• vs. Trademark: A celebrity’s name can be trademarked for specific goods or services, but the right of publicity is a broader, more personal right that is not tied to a specific commercial category.

In the United States, there is no federal law for the right of publicity; it is governed by a patchwork of state statutes and common law. This means the strength and nature of the right can vary significantly from state to state. A crucial aspect of this variation is the post-mortem right of publicity. In states like California and Indiana, the right is descendible, meaning it can be passed down to heirs. This allows the estates of deceased celebrities like James Dean, Marilyn Monroe, or Prince to continue to control and license their likenesses long after their deaths, which is particularly relevant in the age of digital resurrection and deepfakes in film.