Right to Publicity – Definition & Detailed Explanation – Media Law and Ethics Glossary Terms

What is the Right to Publicity?

The right to publicity is a legal concept that gives individuals the right to control and profit from the commercial use of their name, image, likeness, and other aspects of their identity. It allows individuals to prevent others from using their identity for commercial purposes without their permission. The right to publicity is considered a property right, similar to a trademark or copyright, and can be transferred, licensed, and inherited.

What does the Right to Publicity protect?

The right to publicity protects an individual’s identity and personal brand from unauthorized commercial exploitation. This includes preventing others from using a person’s name, image, likeness, voice, and other identifying characteristics for advertising, merchandising, endorsements, and other commercial purposes without their consent. The right to publicity also extends to preventing the unauthorized use of a person’s identity in a way that could harm their reputation or cause emotional distress.

How is the Right to Publicity different from the Right to Privacy?

While the right to publicity and the right to privacy both protect an individual’s personal interests, they serve different purposes. The right to privacy focuses on protecting an individual’s personal information, seclusion, and autonomy from intrusion by others. It covers areas such as intrusion into one’s private life, public disclosure of private facts, false light, and appropriation of name or likeness for non-commercial purposes.

On the other hand, the right to publicity specifically addresses the commercial use of an individual’s identity without their permission. It allows individuals to control how their identity is used for commercial gain and to profit from their own image and likeness. While the right to privacy is more concerned with protecting personal autonomy and dignity, the right to publicity is more focused on protecting an individual’s economic interests and commercial value.

What are the limitations of the Right to Publicity?

Despite the protections afforded by the right to publicity, there are some limitations to its scope. One limitation is the balancing of the right to publicity with the First Amendment right to free speech. Courts must weigh the interests of individuals in controlling their identity against the public’s interest in free expression and the dissemination of information.

Another limitation is the distinction between commercial and non-commercial uses of an individual’s identity. The right to publicity generally only applies to the commercial use of a person’s name, image, or likeness for advertising, merchandising, or other commercial purposes. Non-commercial uses, such as news reporting, commentary, satire, and artistic expression, may be protected under the First Amendment and not subject to the right to publicity.

Additionally, the right to publicity is not absolute and may be subject to limitations based on the jurisdiction and the specific circumstances of each case. Courts will consider factors such as the newsworthiness of the use, the transformative nature of the work, and the potential harm to the individual’s reputation or privacy when determining the scope of the right to publicity.

How does the Right to Publicity apply in the digital age?

In the digital age, the right to publicity has become increasingly important as individuals’ identities are easily disseminated and exploited online. Social media platforms, digital advertising, and e-commerce have created new opportunities for the commercial use of personal information and the unauthorized appropriation of individuals’ identities.

The right to publicity in the digital age extends to protecting individuals from unauthorized uses of their identity on social media, websites, online advertisements, and other digital platforms. It also includes addressing issues such as deepfakes, where artificial intelligence is used to create realistic but fabricated videos or images of individuals for deceptive or malicious purposes.

Courts are grappling with how to apply traditional principles of the right to publicity to the rapidly evolving landscape of digital technology. They must consider factors such as the global reach of the internet, the anonymity of online actors, and the challenges of enforcing rights across multiple jurisdictions and platforms.

What are some notable cases involving the Right to Publicity?

One of the most famous cases involving the right to publicity is the lawsuit brought by actress Marilyn Monroe’s estate against a company that used her image without permission. The court ruled that Monroe’s right to publicity survived her death and could be enforced by her estate, establishing an important precedent for posthumous rights of publicity.

Another notable case is the lawsuit filed by professional wrestler Hulk Hogan against the website Gawker for publishing a sex tape featuring him without his consent. The court found in favor of Hogan, awarding him a substantial judgment for violation of his right to privacy and right to publicity.

More recently, celebrities such as Kim Kardashian and Taylor Swift have taken legal action to protect their right to publicity against unauthorized uses of their image and likeness in advertising, merchandise, and social media. These cases highlight the ongoing importance of the right to publicity in the digital age and the need for individuals to assert control over their personal brand and commercial value.