Individuals have a legal right to protect their identity and control the economic exploitation of their persona and image. But exemptions have been growing as society evolves.
Classic forms of intellectual property, like copyrights, trademarks, or patents, protect clearly identifiable outputs of human creativity'for example, novels, musical compositions, logos, or practical inventions. The right of publicity, on the other hand, protects a less easily defined, and more intimate, aspect of the individual from unwanted commercial exploitation: their "persona." In the United States, the right grants individuals some measure of control over uses of their name, image, voice, likeness, and other identifying aspects of the "self," and the ability to control exploitation of this bundle of traits is therefore, unsurprisingly, sometimes referred to as a set of "personality rights."
Most U.S. states recognize the right of publicity in these basic terms, though states diverge on other aspects of the law, including whether the right survives death and whether it can be assigned. Some state statutes provide quite extensive lists of the aspects of personality that are protected. Indiana's statute, for example, provides protection for a personality's name, voice, signature, photograph, image, likeness, distinctive appearance, gestures, and mannerisms. Ind. Code ' 32-36-1-7 (2020).
The nature and extent of protection afforded to personality rights outside of the United States varies greatly by jurisdiction, and so this article limits its discussion to U.S. law. The interpretations of U.S. law also vary from state to state, as discussed in this article.
A right of publicity can be protected under state statutory law, common law, or both. In New York, there is no common law right of publicity; claims must be brought under Sections 50 and 51 of the New York Civil Rights Act, which legislate the "right of privacy" and protect against the non-consensual use of a person's "name, portrait, or voice" for commercial gain. N.Y. Civ. Rights Law ' 50, 51 (McKinney 2019). As of the end of September 2020, however, a new bill passed by the New York legislature which will create a distinct, descendible, and transferable right of publicity was awaiting the signature of New York's governor. S. 5959-D, 2019-2020 Sess. (N.Y. 2019).
On the opposite coast, California recognizes both a statutory and a common law right of publicity, which similarly protect the unconsented use of an individual's image. Section 3344 of California's Civil Code prohibits the "knowing[] use[] [of] another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent." Cal. Civ. Code ' 3344 (West 2020). California common law sweeps beyond "knowing" uses for advertising purposes and prohibits any appropriation of a plaintiff's identity "to defendant's advantage, commercially or otherwise." Newcombe v. Adolf Coors Co., 157 F.3d 686, 692 (9th Cir. 1998).
The Right of Publicity vs. Freedom of Expression
The right of publicity first emerged in an era prior to mass-market film, radio, or television as a narrow tool to prevent the misleading, unconsented use of an individual's (usually, a celebrity's) name or image to promote a...
