The Right of Publicity: A Haystack in a Hurricane

Over the years, entertainers, athletes and other celebrities have sought legal protection for a variety of occupationally related injuries. By virtue of being in the public eye, celebrities often complain that their private lives have somehow been invaded. This concept of invasion of privacy involves damages for mental anguish suffered by virtue of the unwarranted disturbance. However, performers may also suffer injury of an economic, rather than personal, nature. For example, an individual\u27s performance may be used without his or her consent. People will normally pay to watch that entertainer, but where the performance is misappropriated, he is unable to reap the benefits of his talent and capitalize upon the public demand for his performance. This economic interest may be referred to as performance value. The other economic interest important to celebrities, somewhat analogous to a business organization\u27s interest in its name and goodwill, is recognition value. As the name implies, this is derived from the public\u27s recognition of a celebrity\u27s name or likeness. The celebrity exploits this recognition through endorsements and other forms of advertising where the goodwill associated with his persona is transferred to a collateral product, thereby increasing its acceptance by the public. In addition, popular interest in the celebrity creates a market for products such as posters, statues, tee-shirts and other memorabilia which carry his name or likeness. Like the performance interest, however, recognition values have little utility unless the legal order acknowledges the exclusive nature of the celebrity\u27s interest in his persona by enabling him to prevent others from exploiting it without his permission. In the past, various legal theories, including privacy and unfair competition, have been invoked to protect performance and recognition values. Recently, however, performers and other celebrities have been utilizing another doctrine known as the right of publicity to prevent unauthorized exploitation of these interests. According to this concept, the intangible values generated by the activities of entertainers and celebrities are characterized as a species of property which can be licensed or assigned to others. Within the last two or three years, courts have decided cases involving such celebrities as Elvis Presley, Laurel & Hardy, Muhammad Ali, Bela Lugosi, Agatha Christie and the Marx Brothers. Litigation of this nature is likely to continue as other celebrities, or those claiming through them, attempt to capitalize on these publicity rights. Almost three decades ago a federal court in Ettore v. Philco Television Broadcasting Corp. characterized the state of the law in the field of publicity rights as a haystack in a hurricane. \u27 Today, the law of publicity remains even more unsettled as new controversies have arisen. Perhaps the most significant issue is whether publicity rights survive the death of those who create them. Another area of uncertainty is the extent to which publicity rights are preempted by federal copyright legislation. Finally, the impact of the first amendment on the right of publicity is in need of clarification. This article will address each of these matters. Part I examines the nature and scope of the right of publicity as well as its relation to privacy and unfair competition. Part II considers whether the right of publicity should survive death while Part III deals with the federal preemption issue. Finally, constitutional limitations on the exercise of publicity rights are analyzed in Part IV