Origins, Definitions, and Early Right of Publicity Cases

AuthorWeston Anson
Pages15-32
15
Origins, Definitions, and Early
Right of Publicity Cases
In this chapter, the purpose is to provide a more foundational narrative of the legal and
foundational aspects of right of privacy and right of publicity, for both our legal and
business readers. Initially we look at definitions, such as they are, both of rights of pri-
vacy and rights of publicity. And then we will look at the origins of right of privacy law
and right of publicity law. The timeline of the history of rights of privacy and rights of
publicity development over a 120-year span is also laid out in this chapter.
To provide a historical grounding for our readers, we touch on protections for the
right of privacy under the law and also talk about the all-important topic of how the
right of publicity is protected. Is it a tort or is it a property right? Or, as some believe,
is it simply another form of trademark use with protections under the Lanham Act? We
then look at the two most important pioneering cases: Haelan Laboratories, Inc. v.
Topps Chewing Gum, Inc., which established the phrase “right of publicity” in 1953,
and Zacchini v. Scripps-Howard Broadcasting Co., the only U.S. Supreme Court case
ever heard on the subject of right of publicity. The chapter then closes with four brief
case studies that illustrate unusual aspects of right of publicity that can be protected in
the courts and for which the rights holder can be compensated.
I. Origins and Denitions of Right of Privacy
and Right of Publicity
Perhaps the first thing to understand about right of publicity—and its close cousin,
right of privacy—is that it is different from other forms of intellectual property in many
ways. Perhaps one of the most important ways it is different is that there is no single
definition of right of publicity. Unlike patents, trademarks, and copyrights, its more
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16 Right of Publicity: Analysis, Valuation, and Current Legal Status
traditional siblings in the intellectual property world, all of which can be clearly defined
for legal and commercial purposes, there is no single definition of right of publicity.
Curiously enough, neither is there a single clear definition of the right of privacy.
One would think that the right of privacy certainly would be a clearer and more easily
defined concept, and it would have a single definition in the law. Unfortunately, this is
not true. Therefore we’ll look at this definitional problem briefly so one understands the
difficulties that sometimes arise.
A. Defining the Right of Privacy
To quote Professor J. Thomas McCarthy, there is no wrong and no precise definition of
right of privacy:
The word “privacy” has taken on so many different meanings and
connotations in so many different legal and social contexts that it has
largely ceased to convey any single coherent concept. Instant recogni-
tion of content is not provided by the “privacy” label. Most people will
readily agree that they should have a “right of privacy.” However, when
pressed for a definition, they will give widely varying responses. When
they hear the word “privacy,” some people will think immediately of
government or credit bureau computerized record keeping which
records all the details making up one’s life experience. Others will
point to unreasonably intrusive searches by police. A few people will
give the example of snooping by neighbors or the press. Few will intuit
the relationship between “privacy” and unpermitted use of personal
identity in advertising. “Privacy” is not a single concept that is shared
by everyone. As every student of history knows, over the span of time,
people have had very diverse concepts of what could or should be kept
private. Even today, privacy has very different meanings to people in
different cultures around the globe.1
As a consequence, defining a right of privacy today is increasingly difficult. In
another definition widely used today in this country, the Supreme Court has taken a
stab at defining privacy. Its definition reads as follows:
[B]oth the common law and the literal understandings of privacy
encompass the individual’s control of information concerning his or
her person. In an organized society, there are few facts that are not at
one time or another divulged to another. Thus the extent of the pro-
tection accorded a privacy right at common law rested in part on the
degree of dissemination of the allegedly private fact and the extent to
which the passage of time rendered it private.2
1.
J. tHOmaS mccartHy, tHe rigHtS Of pubLicity and privacy
§1:6 (West 2013).
2. U.S. Dep’t of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749 (1989), cited
in
mccartHy
, supra note 1, at §X:X.
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