Right of Publicity for Business Entities

December 31, 2008 | Insights

By Stacy Allen

Do corporations and other business entities have a “right of publicity” in their corporate “persona?” Originally viewed as an extension of the right of privacy, the right of publicity has developed into a free-standing property interest in the commercial value of one’s identity. Violation of the right of publicity gives rise to a commercial tort that falls under the umbrella of unfair competition. Initially limited to one’s name or likeness, the list of indicia of identity now includes look-a-likes, sound-a-likes, voices, styles, distinctive phrases, distinctive objects, biographical information, settings strongly associated with particular celebrities, fictional characters or roles strongly associated with particular celebrities who portrayed the same, and signature music styles. Despite this evolution, courts have been largely unwilling to extend the right of publicity beyond human individuals to non-human “persons” like partnerships and corporations, with the notable exception of music groups. However, a close examination of the precedents and policy interests underpinning the right of publicity suggests that the application of traditional privacy-based limitations upon the right may no longer be supportable, if it ever was.

Today, a majority of jurisdictions recognize some form of a right of publicity, although there remains some judicial confusion about whether a ‘privacy’ or ‘property’ right is at stake. Unlike the right of privacy and its tort of appropriation, which provides recovery for mental or emotional distress, the right of publicity gives rise to a tort claim to recover for commercial loss:

While there has been much confusion generated by the semantic distinction between “privacy” and “publicity,” the courts have now come to recognize that the two rights are clearly separable and rest on quite different legal policies: the right to privacy protects against intrusion upon an individual’s private self-esteem and dignity, while the right of publicity protects against commercial loss caused by appropriation of an individual’s personality for commercial exploitation.

J. Thomas McCarthy, McCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 28:6 (4th ed. 2008); see Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 571 (1977) (distinguishing violation of the right of publicity from the traditional privacy torts). Since the rights of privacy and publicity are clearly separate and distinguishable, arguments against the assertion of the right of publicity by non-human persons which are grounded in principles of privacy law are suspect, as are those which contend that such publicity rights are already protected by other areas of intellectual property law.

In Bi-Rite Enters., Inc. v. Button Master, 555 F. Supp. 1188, 1199 & 1200 (S.D.N.Y. 1983), the court found that certain music groups had developed a valuable identity, and that – per the most compelling of the policy considerations favoring the right of publicity – there was no principled reason for denying a music group the right to protect its proprietary “persona” against the unfairness inherent in allowing another to exploit the same without just compensation. Should the right extend further to business entities beyond loose amalgamations of human individuals, such as partnerships and corporations? The policy considerations served by the right of publicity suggest that there may be little basis for distinguishing between human and non-human plaintiffs.

Once liberated from the shackles of the right of privacy (and its focus on injury to an individual’s feelings), the rationale for limiting the right of publicity to human plaintiffs becomes far less clear. If misappropriating the monetary value of one’s unique identity without consent or compensation is instinctively unfair, then why is it any less reproachable when the victim is non-human? Similarly, if the interest protected is the objective commercial value of a person’s identity as set by the market (as opposed to his subjective feelings), then why is such a loss any less deserving of a remedy when sustained by, for example, a corporation? It can be argued that a corporation invests its resources into building its commercial “identity” in much the same way that an individual does (or is purported to). If so, then why should it matter that one victim is human and the other is not when both are “persons” in the eyes of the law? Can it not be argued that the interest in exploiting the economic value of one’s identity is indistinguishable, regardless of the “person” involved?

Today, a majority of jurisdictions recognize some form of a right of publicity, although there remains some judicial confusion about whether a ‘privacy’ or ‘property’ right is at stake.

That other areas of the law provide some measure of protection to business entities is not, in itself, a particularly compelling reason for denying the logical extension of the right of publicity to such entities. First, those laws carry with them their own barriers that could work to deny a remedy where one would otherwise be available to a human plaintiff asserting his or her right of publicity. For instance, a corporate plaintiff rightfully seeking redress for the unauthorized exploitation of its identity by another may not be entitled to protection under federal trademark or trade dress law if it cannot prove that the various indicia of its identity constitutes a protectable or famous mark or trade dress, that there exists a likelihood of confusion, or that the defendant has made an unauthorized use of the trademark or trade dress in commerce. Similarly, other unfair competition laws can require a false suggestion of endorsement or that the defendant be a competitor. Nor does the right of publicity concern itself with protection against deception in the marketplace, which is a primary concern of trademark and trade dress law. Rather, the right of publicity serves to protect the person whose identity is misappropriated, not the consumer who might be deceived. Second, it is hardly novel to conceive that a plaintiff may assert overlapping and/or complementary theories of recovery on the same facts.

In light of Bi-Rite Enterprises and similar cases, and in the absence of limiting statutory language or adverse case precedent in a given jurisdiction, creative non-human plaintiffs whose other legal remedies are imperfect may begin resorting to pleading a cause of action sounding in the right of publicity.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice.