What is right of publicity?
The “right of publicity” is a form of intellectual property right that protects against the misappropriation of a person’s name, likeness and perhaps other indicia of personal identity for commercial benefit. In the United States, the right of publicity has not been recognized at the federal level by statute or case law, although a related statutory right to protection against false endorsement, association or affiliation is recognized under federal unfair competition law.
The right of publicity has been recognized by statute and/or case law in the majority of the 50 individual states. The right of publicity can extend to various personal attributes such as name, nicknames, pseudonyms, voice, signature, likeness, photograph or other indicia of identity or persona. There is a divergence among the states on the following issues: 1) whether the right survives posthumously and, if so, for how long; and 2) whether the right of publicity is descendible (inheritable) and assignable.
Outside of the United States, rights analogous to the right of publicity are sometimes recognized as “personality rights,” “rights of persona,” or other similar terminology, and the source and scope of those rights vary.
From a trademark point of view, a person’s name or likeness can—through proper trademark use and/or registration—also develop into a trademark. As a result, some celebrities register their names and/or likenesses as trademarks.
When considering right of publicity issues, other possible issues arise such as copyright, privacy claims and defamation claims.
The “right of publicity or persona” is an evolving and developing area of the law that has similarities to trademark law, impacts trademark owners, and, as a result, is of interest to INTA.
INTA favors the enactment of a federal right of publicity law
in the United States.