June 05, 2013 Articles

When Right of Publicity and the First Amendment Collide

Does venue determine outcome?

By Mary Ellen Roy

When the right of publicity collides with the First Amendment, the venue of the litigation may determine the outcome of the dispute.

The right of publicity arose originally out of the right of privacy, but it is also viewed as a proprietary right. Section 46 of the Restatement (Third) of Unfair Competition defines the right of publicity as subjecting to liability one "who appropriates the commercial value of a person's identity by using without consent the person's name, likeness, or other indicia of identity for purposes of trade."

In addition to the state-law right of publicity, a claim of false endorsement under the Lanham Act, 15 U.S.C. § 1051 et seq., has been called a federal right of publicity. Because there is no likelihood-of-confusion requirement for right-of-publicity claims, as there is with Lanham Act claims, such claims may potentially be broader than false endorsement claims under the Lanham Act. In most cases, resourceful plaintiffs allege both right of publicity and Lanham Act causes of action in their complaints, and courts often treat the claims similarly.

At times, the right of publicity collides with the First Amendment's right to freedom of speech and of the press. Such a collision occurs when a news or artistic work—such as a television broadcast, a magazine article, a film, a painting, a song, or even a video game—features a celebrity's name or likeness. There is no doubt that the news media may report newsworthy items about a celebrity's life, such as births, deaths, arrests, and even more trivial details such as public shopping expeditions or travels. The more difficult cases involve situations in which the celebrity's name or likeness is exploited commercially without authorization.

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