Preventing the Misappropriation of Identity: Beyond the Right of Publicity

The appropriation of an individual\u27s name or likeness without that individual\u27s consent subjects defendants to civil liability under the tort law doctrine known as the right of publicity. While, as originally formulated, the doctrine protected only a person\u27s name or likeness from misappropriation, in recent years the right of publicity has been substantially expanded to broadly protect against the misappropriation of one\u27s identity. While the original formulation of the doctrine may have been unnecessarily restrictive, expanding the protection afforded by the right of publicity to include characteristics beyond merely name or likeness carries its own dangers of foreclosing a substantial range of creative expression and granting to public figures windfall monopolies to control media, artistic, and commercial portrayals of aspects of their identity. This Article discusses and analyzes the recent development of the right of publicity and suggests the proper scope for the protection of identity