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RIGHT OF PUBLICITY
The phrase "right of publicity" was coined by Judge Jerome
Frank in Haelean Laboratories, Inc. v. Topps Chewing Gum,
Inc. 202 F.2d 866 (2nd Cir. 1953). Following New York law,
Judge Frank delineated the distinction between the "right
of publicity" and the "right of privacy." New York's publicity
law enabled individuals to protect themselves from unauthorized
commercial appropriation of their personas. Judge Frank thereby
recognized an independent common law right protecting economic
interests rather than the personal, emotional interests associated
with the right of privacy.
Unlike the right of privacy, which is a personal right, the
right of publicity is generally regarded as a property right.
While damages in privacy cases are measured by emotional distress,
damages in publicity cases are measured by the commercial
injury to the business value of personal identity. J. Thomas
McCarthy says, "[p]rivacy rights are personal rights. Damage
is to human dignity." From The Spring 1995 Horace S. Manges
Lecture, The Human Persona as Commercial Property; The Right
of Publicity, March 9, 1995, Columbia University School of
Law, at 134. McCarthy continues: "The right of publicity is
not . . . just another kind of privacy right. It . . . is
a wholly different and separate legal right." 19 COLUM.-VLA
J.L. & ARTS 129. Infringement damages are therefore determined
by the fair market value of the plaintiff's identity, the
infringer's profits, and damage to the licensing opportunities
for the plaintiff's identity. For example California's 3344.1
states "rights recognized under this section are property
rights freely transferable." Cal. Civ. Code § 3344.1(b).
Because publicity rights are conceptually regarded as property,
the right of publicity is a transferable right. For the right
of privacy, it is generally accepted that the right dies with
the individual; however, most jurisdictions recognize the
right of publicity as a descendable and transferable property
right. These critical distinctions between the right of privacy
and the right of publicity allow publicity rights to be economically
productive even after a celebrity dies.
Legislation of Publicity
Rights
While the right of publicity originated from common law, an
increasing number of states have enacted right of publicity
statutes. Eleven states recognize publicity rights by way
of common law; eighteen via statute. These eighteen include
California, Florida, Illinois, Indiana, Kentucky, Massachusetts,
Nebraska, Nevada, New York, Ohio, Oklahoma, Rhode Island,
Tennessee, Texas, Utah, Virginia, Washington, and Wisconsin.
Note also that the American Law Institute's Third Restatement
of Unfair Competition (1995) § 46 also recognizes the right
of publicity as a separate legal theory. Moving from privacy
to publicity has not been an easy transition, and varying
interpretations by the courts of these common law and statutory
rights have caused considerable confusion.
New York led the way with the 1903 enactment of New York Civil
Right Law sections 50 and 51. This statute prohibits the use
of the name, portrait, or picture of any living person without
prior consent for "advertising purposes" or "for the purposes
of trade." In the early part of the twentieth century, when
there was very little precedent for the right of publicity,
New York viewed publicity rights more as a personal right
than a property right. Most states following New York in adopting
publicity statutes recognized the importance of extending
the right of publicity to the estate of the personality, because
it is in fact a property right. As such, post-mortem publicity
rights are increasingly a component in right of publicity
legislation.
California's publicity rights are perhaps the preeminent models
for right of publicity laws. California protects against unauthorized
uses of a deceased celebrity's persona for the purpose of
advertising or selling, and for the unauthorized use of a
celebrity's persona on or in a product. California began establishing
publicity rights for living personalities in 1972 through
section 3344 of the Civil Code. When California enacted Section
990 in 1985, it thereby allowed the celebrity's publicity
rights to pass to a successor in interest, who can then prevent
the unauthorized use of the decedent's name and likeness for
a period of fifty (50) years. In 1999, the California legislature
amended Section 990 and incorporated it into 3344; hence,
Section 990 became Section 3344.1. By virtue of the amendment,
the post-mortem duration was extended to seventy years, consistent
with the copyright term extension as effectuated by the Sonny
Bono Copyright Term Extension Act in 1998. In addition to
these statutory provisions, California's common law publicity
rights can also be useful in providing protection to a celebrity.
While California's statutes are perhaps the most debated right
of publicity laws due to their visibility, the distinction
of having the most comprehensive right of publicity statute
to date belongs to the State of Indiana. Indiana enacted its
statute in 1994, which is considered by many to be the most
broad and sweeping of the right of publicity statutes. Indiana's
law protects a deceased individual's right of publicity for
a period of 100 years. Ind. Code Ann. §§32-36-1 et seq. (Michie
2002). The Indiana statute is very similar to California's
Section 3344.1, and contains many similar exemptions for First
Amendment purposes.
Case Law
The Supreme Court of the United States has confirmed that
the right of publicity for an individual resides in the associative
value of his or her name, likeness or image. In Zacchini v.
Scripps-Howard Broadcasting, the Court stated: "[p]etitioner's
right of publicity here rests on more than a desire to compensate
the performer for the time and effort invested in the act;
the protection provided an economic incentive for him to make
the investment required to produce a performance of interest
to the public." Zacchini v. Scripps-Howard Broadcasting Co.,
433 U.S. 562, 576 (1977). In language reminiscent of the policies
supporting copyright and patent laws, Justice White articulated
what has become the foundation of the right of publicity.
Various state courts have grappled with the parameters of
the right of publicity, and these decisions have no doubt
led to the shaping of each state's statutes (of those with
publicity statutes on the books). Even so, it is possible
to discern a consistency in the judicial interpretation of
the right of publicity.
 The
most famous Right of Publicity cases are the "impersonator"
cases of Midler, Waits, and White. Midler
v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988) and
Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992)
involved similar fact patterns in that both Bette Midler and
Tom Waits declined to lend their distinctive voices to advertising
jingles for two prominent manufacturers. The advertisers proceeded
to find performers who could duplicate the vocal styling of
Bette Midler and Tom Waits. Both Midler and Waits prevailed
on Right of Publicity claims which yielded $400,000 for Midler
and $2,500,000 for Waits several years later. In another famous
impersonator case, White v. Samsung Electronics
America, Inc., Samsung utilized a robot that looked
and acted like Vanna White of "Wheel of Fortune" fame. 971
F.2d 1395 (9th Cir. 1992). Samsung dressed the robot like
Vanna White and made the robot turn letters like Vanna White's
on Wheel of Fortune. White was
awarded $403,000.
 In
January of 1999, Dustin Hoffman sued a magazine publisher
for infringing his Right of Publicity.
Hoffman v. Capital Cities/ABC, Inc., Los Angeles Magazine,
33 F.Supp.2d 867 (C.D. Cal. 1999). Los Angeles Magazine manipulated
movie still shots to make it appear that the celebrities were
wearing designer clothing. Dustin Hoffman's
Tootsie character was dressed in a Richard Tyler gown
and Ralph Lauren heels· Though it was clear from the
photo editorial that Hoffman personally did not endorse these
designers, he nevertheless was awarded $3,270,000 for the
violation of his publicity rights. It should be noted that
this case was overturned on appeal, but Hoffman is reportedly
appealing that decision. The case remains notable as an example
of the escalating damages in infringement cases.
Numerous other noteworthy Right of Publicity cases have come
down over the years. Carson v. Here's
Johnny Portable Toilets, 698 F.2d 831 (6th Cir. 1983)
and Motschenbacher v. R.J. Reynolds Tobacco
Co., 498 F.2d 821 (9th Cir. 1974) are significant in
that neither case involved the name or image of the famous
individual implicated in the case. The former of these cases
involved the well-known "Here's Johnny" introduction
of Johnny Carson on the Tonight Show
in an advertisement. The latter involved an advertising use
of a certain race car that was identifiable as belonging to
a specific driver. In each case, the companies were infringing
because of the unequivocal association that the public could
make between the phrase and the car, and the famous individuals
associated therewith.
 George
Wendt and John Ratzenberger, who played Norm and Cliff on
the television show Cheers, also
were involved in an infringement case.
Wendt v. Host International Inc., 197 F.3d 1284 (1999).
In this case, a theme restaurant based around the set of Cheers
used robots where Norm and Cliff always appeared in the show.
The robots play clips of Norm and Cliff from the show. Ultimately,
the defendants settled with the actors.
 Comedy
III Productions Inc. v. Gary Saderup, Inc. pitted the
Right of Publicity against First Amendment arguments. Supreme
Court of California (April 30th 2001), 2001 Cal. LEXIS 2609.
Defendant is an artist who used his charcoal depiction of
the Three Stooges and sold the artwork on T-shirts and lithographs.
The defendant argued that his merchandise was "newsworthy"
because the Three Stooges once made headlines. The judge ruled
that newsworthy defense has a timeliness component beyond
the scope of the case at hand. Regarding the First Amendment
defenses, the court held for the plaintiff and developed a
new balancing test to determine when the Right of Publicity
trumps an artist's First Amendment rights. When a celebrity
is the subject of a work of art which is not an original single
work of art, the celebrity's publicity rights are outweighed
by the artist's right to commercially produce his art only
when the work is "sufficiently transformative."
To put it another way, "when an artist's skill and talent
is manifestly subordinated to the overall goal of creating
a conventional portrait of a celebrity so as to commercially
exploit his or her fame, then the artist's right of free expression
is outweighed by the right of publicity."
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