The purpose of the right of publicity is to provide all individuals the right to control the commercial use of their attributes such as likeness, image or name. This state-based right is primarily concerned with protecting celebrities, hereinafter referred to as “personalities.”1 As the right gained more recognition from courts and legislatures in the last 25 years, its value to personalities increased substantially. Sport, entertainment and public figures, like Tiger Woods, Bill Clinton and Woody Allen, make millions of dollars2 from endorsements, speaking engagements, and right of publicity claims. Personalities are also taking advantage of the wide variation in right of publicity laws to bring claims based on a perception of infringement.
Significant variation in state laws and judicial interpretations has proven problematic. Thus, one must ask, does this state-based right of publicity scheme demand a federal right of publicity statute? The answer to that question is “yes” for the following reasons. First, lack of uniformity among state laws causes uncertainty regarding the right’s scope and limitation, and proper forum. Second, the right of publicity conflicts with other intellectual property laws like copyright and trademark. Thirdly, some states have overprotected the right by protecting a personality’s gesture, distinctive appearance or object like a sports car, and by granting postmortem rights of publicity, retroactively.
This paper examines these issues and proposes that a federal statute be implemented to limit the right of publicity. Part I of this paper provides a brief background of the right of publicity’s origin, underlying policy and current state. Part II examines the problems with the right of publicity by focusing on differences among state laws, copyright implications in chosen cases, and the expansion of personality rights. Section III examines arguments for and against a federal right of publicity statute. Section IV concludes that a federal statute is necessary and discusses what elements should be incorporated into such a statute.
First place in the 2012 Georgia State University Intellectual Property Student Writing Competition
Lee-Richardson, Brittany, "Judgment for Federalism: A Case for why the Right of Publicity should be a Federal Right" (2012). Student Award Winning Papers. Paper 1.