A growing type of intellectual property: publicity rights

The right of publicity protects an individual from the unauthorized commercial use of her name, likeness, or other recognizable characteristics. Right of publicity was derived from the common law right of privacy and protects against the appropriation of an individual’s personality for commercial exploitation. Obvious examples include the use of a person’s name or photograph on a product or in an advertisement, but this right also prohibits more creative or complex uses, such as the unauthorized creation and use of a college athlete’s “avatar” in a computer video game. Similar to trade secrets, no government registration process is required to protect or enforce the right of publicity. U.S. law currently protects all peoples’ publicity rights without requiring them to undergo a formal registration process to protect those rights. The right of publicity is a common law and statutory right, this means that there is no federal body of law governing the way that each state handles right of publicity claims. As a result, remedies can vary from state- to-state and a right of publicity claim may be invalidated by copyright law, should the subject matter of the claim fall under both the right of publicity and copyright law (for example, the unauthorized use of someone’s voice in a song could be subject to the right of publicity and copyright law).

To defend against an action for infringement upon publicity rights, a defendant can argue that her activity does not refer to the plaintiff. A defendant can also argue that her conduct is protected by the First Amendment rights to free speech, such as when the defendant refers to the plaintiff in a newspaper story or a novel. In cases like these, the court will have to balance these competing rights of both individuals, which can make the outcome very difficult to predict.

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