An athlete's right of publicity.

• Author: Rowland, Brian M.
• Position: Entertainment, Arts and Sports Law

One of the more valuable assets a celebrity-athlete may possess is his or her identity or persona. (1) This asset may be of considerable and lasting value, because when one's ability to play the game wanes, the marketing power of one's persona might not. Stars like Arnold Palmer, Peggy Fleming, Richard Petty, Martina Navratilova, and George Foreman continue to appear in endorsement advertisements long after their peak performing days in sports are over. Meanwhile, past sports figures like "Shoeless" Joe Jackson, Vince Lombardi, and Dale Earnhardt continue to have significant marketing value after their deaths. How does one protect the use of his or her persona from wrongful appropriation? What limits apply to that protection?

The tort of appropriation has two fundamental branches: the right to privacy and the right of publicity. (2) The difference between the right to privacy and the right of publicity is substantial. The right of publicity has its roots in the common law tort of appropriation and protects the economic interest one has in his or her name. (3) On the other hand, the right to privacy protects against unreasonable intrusion upon seclusion, the public disclosure of private facts, and false light in the public eye. (4) It is arguable that the line between publicity and privacy rights lies between prevention of unjust enrichment by a party who would appropriate one's persona for profit, and protection of one's dignity and state of mind. (5) This article will explore the formation of the right of publicity and how it has applied to sports figures. It will seek out the parameters of generally available protection based on various case law and will examine how the right of publicity is protected under Florida law.

Origins of the Right

As early as 1891, the U.S. Supreme Court recognized a person's right to the use of his or her own name. (6) One of the earliest cases to test and expand this concept in a commercial setting was Edison v. Edison Polyform Mfg. Co., 67 A. 392 (N.J. Ch. 1907). Inventor Thomas Edison developed a pain relief formula he called "Polyform." He assigned rights to the formula in 1879 for $5,000. After several failures by the assignee to market the product, the formula ended up in the hands of a New Jersey company operating under the name of "Edison Polyform." This company successfully marketed the formula in the Chicago area. On the bottle's label was a picture of Thomas Edison and the caption: "Edison's Polyform. I certify that this preparation is compounded according to the formula devised and used by myself. Thos. A. Edison." (7) Edison testified that he never authorized the use of the picture and never authored the certification. The New Jersey Court of Chancery granted Edison the injunction and stated that "[i]f a man's name be his own property ... it is difficult to understand why the peculiar cast of one's features is not also one's property, and why its pecuniary value, if it has one, does not belong to its owner, rather than to the person seeking to make an unauthorized use of it." (8)

Edison focused upon the right for Thomas Edison to control the use of his name and an injunction issued to protect that right. The court did not consider any economic benefit denied or financial harm incurred by Edison.

Through the first half of the 20th century, publicity-based lawsuits were filed based upon rights to privacy, and courts would allow unconsented use of a person's image where the person had attained fame. Typical of this was the 1941 case of Davey O'Brien. O'Brien was a famous college football player who sued to recover for the use of his persona on a calendar that advertised Pabst beer. (9) O'Brien claimed he would never lend his name to advertise alcohol, but the court denied relief, stating that he had lost his right to privacy by his prior achievement of fame. (10)

In 1953, the right of publicity was at last formally recognized in Haelan Laboratories v. Topps Chewing Gum, 202 F.2d 866 (2d Cir. 1953). (11) In Haelan, the plaintiff entered into an exclusive agreement with a professional baseball player to have the exclusive right to use the player's photograph in connection with the sale of the plaintiff's gum. Soon after, the defendant, a competing chewing gum company, intentionally induced the same baseball player to enter into a similar exclusive agreement. The defendant contended that the agreements were merely releases from liability from suit under the ball player's right to privacy and that this right was a personal right and not assignable. (12) The court rejected the notion and instead declared that "[t]his right might be called a `right of publicity.' For it is common knowledge that many prominent persons (especially actors and ball-players), far from having their feelings bruised through public exposure of their likenesses, would feel sorely deprived if they no longer received money for authorizing advertisements, popularizing their countenances, displayed in newspapers, magazines, busses, trains and subways." (13) Haelan thereby distinguished the right of publicity from the right to privacy.

The bifurcation of the tort of appropriation into a right of publicity (a proprietary right), and privacy (a dignitary right), (14) is illustrated by comparing two landmark articles. Privacy issues were explored by Louis Brandeis and Samuel Warren in the famous 1890 article The Right To Privacy. The authors discussed the right in the context of protecting one's individual solicitude and privacy from "[g]ossip, no longer the resource of the idle [but now a trade] ... only procured by intrusion upon the domestic circle." (15) The Right To Privacy set forth the notion that such privacy rights are not founded in contract, but are naturally occurring rights against the world protecting the "private life, habits, acts, and relations of an individual [with no connection to] his fitness for public office." (16) Over half a century later, Melville Nimmer, in his article The Right of Publicity, wrote that a violation of the right of publicity involved unjust enrichment or profitable appropriation and exploitation. (17) Nimmer identified the proper test for infringement of the right of publicity to be "identifiability." (18) Thus, according to Nimmer, if the identity of the person claiming infringement cannot be ascertained in the allegedly infringing work, there is no cause of action.

Under current law, four elements of appropriation of identity constituting infringement to the right of publicity have been established. (19) The elements are: taking, identification, benefit to the appropriator, and lack of consent. (20) A taking demands that third parties recognize the identity and act in a manner that tangibly benefits the taker. (21) The person whose image is appropriated must be objectively identifiable. (22) As well, a benefit to the appropriator must accrue before a legal claim arises, (23) and the use must be nonconsensual. (24)

Parameters of the Right of Publicity

With the right to prevent the unauthorized use of a persona established, the ability to manage the persona or defend...