The so-called right of publicity gives individuals a legally protected interest against commercially motivated communicators’ use of their names or likenesses for purposes of commercial gain. Although the right is sometimes viewed as a subcategory of the right of privacy, it may be exercised by the best known celebrities, as well as by the most private individual. It is therefore more properly characterized as a property interest in one’s name and likeness than a protection of one’s privacy.
In order to satisfy the concerns of the First Amendment right of free expression, however, the statutory and common law development of the right has always been qualified by a “public interest” exception: the right does not extend to the commercial use of an individual’s name or likeness when either is employed as part of a communication that furthers the public’s interest in acquiring information. This public interest exception, however, has never been applied to the communication of a profit-motivated speaker when the name or likeness is used as part of the commercial promotion of the sale of a product or service. It has long been assumed that such communications are merely commercial advertising, that inherently lack the public importance of expression by the more traditionally protected communications media. This assumption has been made despite the fact that the commercial advertiser may be communicating the exact same information about a celebrity that was given First Amendment like protection when disseminated by the equally commercially motivated media.
Although at the time these assumptions were made they were consistent with controlling First Amendment theory and doctrine, courts enforcing the right of publicity appear to have been operating in a time warp over the last thirty years, ignoring all but completely the evolution of a vigorous First Amendment protection of commercial speech. Application of currently accepted doctrinal precepts of commercial speech protection reveal that discrimination against commercial advertisers in invocation of the public interest exception is unambiguously unconstitutional. The only conceivable reason to discriminate against commercial advertisers when they communicate the exact same information about celebrities that is fully protected when disseminated by the commercially motivated communications media is the narrow profit motivation of the advertiser. This, however, is a constitutionally unacceptable basis for distinction; in no other area of First Amendment jurisprudence is a speaker disqualified because of his or her narrow self-interest—even when that interest is purely economic, as in the case of the commercial advertiser. This Article argues that the courts’ willingness to incorporate established precepts of commercial speech protection into their right of publicity calculus is long overdue.