Jennifer Rothman ’91 Explains the Right of Publicity

The book: At a time when individual privacy seems to be increasingly shrinking, Loyola Law School professor Jennifer Rothman ’91 argues that the lesser-known “right of publicity” is an effective tool to protect it. The Right of Publicity: Privacy Reimagined for a Public World (Harvard University Press) is a detailed study of the people’s right to control uses of their likenesses and personalities and how it can be applied in the 21st century. Rothman begins with the advent of the camera and its implications on privacy in the 1880s and traces the history of the right of publicity through to 2016, relying heavily on relevant court cases and events that have shaped public opinion of that right. She also includes chapters on the right’s sometimes messy interaction with other sections of law — particularly, the First Amendment and copyright. Rothman asserts that the “right of publicity” is an invaluable tool for individuals but has sometimes strayed from its original purpose, particularly in cases where it has become seen as transferrable — like intellectual property or patents.

The author: Jennifer Rothman ’91 is professor of law and the Joseph Scott Fellow at Loyola Law School, Los Angeles. She is also an elected member of the American Law Institute and an affiliated fellow at Yale Law School’s Information Society Project.

Opening lines: “In an age of drones flying over our backyards recording images, people live streaming from smartphones what they are doing and where they are, online businesses collecting and selling our data, and widespread sharing of our photos, experiences, and thoughts online, there is little that remains unspoken, secret, or truly private. This has led some to conclude that privacy is dead. But privacy lives on—in part through the “right of publicity.” The right of publicity is something we all have—it is the right to stop others from using our identities, particularly our names and likenesses, without permission. It is sometimes thought of as a property right in one’s personality.

           

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Most people outside of the entertainment business and the law are unfamiliar with the right, yet it is relevant to us all, and likely to be increasingly so in our Internet Age. To the extent people have heard of the right of publicity, it is likely in the context of celebrities, who often wield the right to prevent unwanted uses of their identities, or at least to reap the rewards of such uses. Basketball star Michael Jordan asserted his right of publicity and won more than $9 million against two supermarkets that used his name and jersey number along with their brand names to congratulate him in the pages of Sports Illustrated on his induction into the Basketball Hall of Fame. Tony and Grammy Award winner Bette Midler used the right to win a $400,000 verdict against a car company that used a song that she made famous in an advertisement, even though the company hired another singer to perform the song and licensed the music. Professional hockey player Tony Twist won a $15 million judgment on the basis of the right after the author of the comic book Spawn named a character Tony Twistelli. Game show hostess Vanna White won a jury verdict of more than $400,000 by asserting her right of publicity against the electronics company Samsung when it used an image of a robot wearing a wig on the set of Wheel of Fortune in an advertisement, even through the robot looked nothing like White.

            The right of publicity is not only for the famous. Nor need one be a performer or athlete to bring a right of publicity claim. Facebook users have relied on the right to sue the social media giant for using their names and likenesses in advertisements targeted to their online friends. Twitter users have asserted the right of publicity against that company for selling their names and photographs for use in a trading card game of “real-life people.” Victims of sex traffickers have asserted right of publicity claims against online newspapers (like Backpage) and advertisers for using their images to offer their (nonconsensual) sex services. The right of publicity has also been asserted against mug-shot websites that “helpfully” offer to remove one’s image for a fee.

            There is no federal right of publicity, nor is such a right provided for in the United States Constitution, like the rights of liberty, freedom of speech, and freedom of religion. Instead, the right of publicity is a state law and not a uniform one. Its contours differ from state to state. Nevertheless, it is described as a “right” because of a sentiment that we are each entitled to exercise some degree of control over how our identity is used by others, much as we have a right to speak (or not speak) or to marry (or not marry). But unlike these constitutionally protected rights, the right publicity is created at the state level, either by judges creating common law rules in the context of deciding cases or by state legislatures passing right of publicity statutes. Because of the variability across states of what the right of publicity encompasses, defining the right of publicity is challenging. At its broadest, the right of publicity provides a basis to control the unwanted dissemination of one’s name and likeness, and other indicia of identity for another’s advantage.”

Reviews: “This is the definitive biography of the right of publicity, whose boundaries have exploded in recent years. Jennifer Rothman tells the story with zest, explaining how we should restructure this right in our fame-obsessed age.” —Jack M. Balkin, Yale Law School