The “right of publicity” is the inherent right of every human being to control the commercial use of his or her identity. Please note these carefully chosen words. It is the right of “every human being,” not the right of every person. In many contexts we could substitute the phrase “every human being” with the word “person,” but it is important to remember that the right of publicity is an individual right. When the word “person” is used in the law we most often define “person” to include corporations or other similar entities. This is not the case with the right of publicity. The right of publicity does not protect the persona of a corporation, partnership, institution or other similar entities; it protects only the human identity. Eagle’s Eye, Inc. v. Amber Fashion Shop, Inc., 627 F.Supp. 856, 862 (E.D. Pa. 1985).

The first time the term “right of publicity” was used was by Judge Jerome Frank in Haelan Labs., Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir. 1953). Shortly thereafter The Right of Publicity, 19 Law & Contemporary Prob. 203 (1954), which is the seminal law review article in the area, outlined the right of publicity. The concept of a property right in one’s identity evolved initially from the tort of invasion of privacy. As the right of publicity matured it became recognized as a right independent from the right to be left alone embodied in the tort of invasion of privacy. As the right of publicity became its own, independent cause of action it increasingly became associated with copyright and trademark law. Given the evolution of this doctrine, and the fact that it is largely both a commercial tort and a form of unfair competition, the right of publicity is properly characterized as an intellectual property right.

In the United States, the right of publicity is largely protected by state common or statutory law. Approximately half the states have distinctly recognized a right of publicity. Of these, many do not recognize the right by that name, choosing rather to protect it as part of an individuals right of privacy. The Restatement (Second) of Torts recognizes four types of invasions of privacy: intrusion, appropriation of name or likeness, unreasonable publicity and false light. Under the Restatement’s formulation, what we commonly think of today as the right of publicity is closest to the unauthorized appropriation of one’s name or likeness. See Restatement (Second) of Torts § 652C, comments a & b, illustrations 1 & 2. Other states protect the right of publicity through unfair competition laws.

On the federal side of the equation, if a person can establish an aspect of his or her identity as a trademark, protection may be provided by Federal law. The Federal Lanham Act can also provide protection where a person’s identity is used to falsely advertise a product or designate its origin. With the growth of the Internet and problems associated with cybersquatting, the United States Congress gave individuals significant rights against cybersquatters who would attempt to use their name as a part of a domain name. 15 U.S.C. 1129 provides, in relevant part:

Any person who registers a domain name that consists of the name of another living person, or a name substantially and confusingly similar thereto, without that person’s consent, with the specific intent to profit from such name by selling the domain name for financial gain to that person or any third party, shall be liable in a civil action by such person.

Infringement of the right of publicity can be triggered by any unauthorized use in which the plaintiff is “identifiable.” A plaintiff is identifiable by name, nickname, stage name, pen name, picture, photograph, voice (particularly a distinctive voice) or any object closely identified with a person.

An unpermitted commercial use where the plaintiff is identifiable triggers a prima facie case of infringement of the right of publicity. Having said this, however, there are two distinct types of infringement. First, and far more typical, is the unauthorized use of an identity to help sell a product, service or event. The second type is triggered by a misapprorpiation of an entertainer’s performance or performance style. The most famous example of this is the case of Hugo Zacchini’s rather unique performance. See Zacchini v. Scripps-Howard Broadcasting Co., 433 US 564 (1977).