The right of publicity has been, since at least 1977, a recognized concept. It was used, much like the other areas of intellectual property law to protect what a person had worked hard to create, in this case the concept of themselves. Their creativity in making themselves known and in having an "act" was worth protecting. However, the right of publicity has drastically changed since its conception. What is has become in the past almost forty years is a strange amalgamation of concepts, protected by laws that were never meant to be used to protect it in the first place. The time has come to take a hard look at the right of publicity, what it is meant to protect, and what we, as a country, should do with it. The right of publicity has long enjoyed protection under common law as a privacy Tort. Misappropriation of name or likeness has been the cause of action under which those whose right of publicity has been violated. Misappropriation has generally had three elements that must be satisfied to successfully bring a claim. One must show that 1. their name or likeness 2. has been appropriated, or used, 3. for another’s benefit. These elements apply to anyone, not just to celebrities, and do not explicitly require a commercial benefit. However, the focus of most right of publicity cases is on celebrities and performers, and it is on these types of cases that this argument focuses. People lacking notoriety generally have remedies in common tort privacy law or in State privacy laws. It is from this basic tort framework that the body of right of publicity law has grown.
The Wrong of Publicity,
6 Pace. Intell. Prop. Sports & Ent. L.F.
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