Legal and Commercial Foundations for Rights of Publicity

• Author: Weston Anson
• Pages: 3-13

3

Legal and Commercial

Foundations for Rights

of Publicity

In looking at the foundational basis for the legal and commercial right of publicity, one

has to look at its genesis and growth based on a three-part foundation: (1) the legal

right of publicity; (2) the historical overview of celebrity status, celebrity culture, and

the history of celebrities, not only in our society but earlier societies; (3) the origin and

concept of rights of privacy. These three things, then taken together, will lead us into

our discussion of the right of publicity.

I. A Brief Legal History

A. Rights of Privacy

This section serves as the briefest possible overview of rights of privacy. It is provided

simply to establish where the right of publicity has sprung from. The right of privacy can

best be defined as the right of persons to be left to themselves and not to be bothered by

others. In law, it is a relatively new concept, although the right of privacy was very well

known and heatedly discussed on both sides of the Atlantic going back to the early days

of the American frontier. No court in the United States or the United Kingdom had ever

expressly passed a law that recognized the existence of the right of privacy, although

there were decisions prior to 1890 that seemed to have dealt with aspects of privacy

in many forms without specifically addressing the “right of privacy.” In 1890 Boston

attorney Samuel Warren and future Supreme Court justice Louis Brandeis published a

CHAPTER 1

ans50153_01_c01_001-014.indd 3 3/23/15 10:12 AM