The Right of Publicity: Worth a Closer Look in the Classroom

• DOI: http://doi.org/10.1111/jlse.12094
• Date: 01 June 2019
• Author: Tonia Hap Murphy
• Published date: 01 June 2019

Journal of Legal Studies Education

Volume 36, Issue 2, 237–279, Summer 2019

The Right of Publicity: Worth

a Closer Look in the Classroom

Tonia Hap Murphy∗

I. INTRODUCTION

A Twitter post by drugstore chain Duane Reade,1shown on the next page as

Figure 1, features a paparazzi photograph of actress Katherine Heigl, bundled

against the cold, shopping bags in hand, leaving “#NYC’s favorite drugstore.”

It is a flattering photo. She is on a public sidewalk. It is true she shopped at

the store. Does she have a legitimate claim against the company?

Heigl’s lawsuit is but one of many recent, high-profile right of publicity

claims. A practitioner resource refers to a veritable “flood of right of publicity

litigation.”2In these cases, the famous (Michael Jordan, Lindsay Lohan, and

others) challenge use of their identities or likenesses in popular video games

(such as Fortnite and Madden NFL), fantasy sports, advertising, and other

contexts that students will find familiar and engaging.

Business law and legal environment textbooks typically devote a page or

two to the tort of invasion of privacy, describing the four versions of this tort,3

including “appropriation of identity.” The Clarkson textbook notes that “An

∗Teaching Professor, Mendoza College of Business, University of Notre Dame. I thank Patrick

D. Murphy for comments on this article and unending encouragement, and Eileen Murphy for

guidance on social media issues.

1See post at Jacob Gershman, Will Katherine Heigl’s Tweet Lawsuit Against Duane Reade Hold up

in Court?,W

ALL ST. J.: L. BLOG (Apr. 10, 2014, 3:26 PM), https://blogs.wsj.com/law/2014/

04/10/will-katherine-heigls-tweet-lawsuit-against-duane-reade-hold-up-in-court/.

2Matthew Savare & John Wintermute, A Haystack in a Hurricane: Right of Publicity Doctrine Contin-

ues to Clash with New Media,32C

OMPUTER &INTERNET LAW., Aug. 2015, at 1, 2.

3A tortfeasor commits invasion of privacy by intruding into an individual’s affairs or seclusion,

portraying an individual in a false light, publicly disclosing private facts, or appropriating an-

other’s identity. See, e.g., CONSTANCE E. BAGLEY,MANAGERS AND THE LEGAL ENVIRONMENT 223

(9th ed. 2019); JEFFREY F. BEATTY ET AL., BUSINESS LAW AND THE LEGAL ENVIRONMENT—STANDARD

EDITION 163–65 (8th ed. 2019); KENNETH W. CLARKSON ET AL., BUSINESS LAW 118–19 (14th ed.

2018); NANCY K. KUBASEK ET AL., BUSINESS LAW:THE ESSENTIALS 136–37 (4th ed. 2019); JANE P.

C2019 The Author

Journal of Legal Studies Education C2019 Academy of Legal Studies in Business

237

238 Vol. 36 / The Journal of Legal Studies Education

Figure 1: Duane Reade Twitter post. Photo Reproduced with Permission of

Splash News & Picture Agency LLC [Color figure can be viewed at wileyon-

linelibrary.com]

2019 / The Right of Publicity 239

individual’s right to privacy normally includes the right to the exclusive use of

her or his identity”4and further that many states have “statutes that establish

the distinct tort of appropriation, or right of publicity.”5

The right of publicity merits deeper coverage.6It is a separate legal right.

Companies stumble into costly publicity lawsuits prompted by publications

that students (and companies) may regard as uncontroversial. We can alert

students to those types of publications that invite litigation. In addition to

this practical benefit, coverage of publicity rights serves as a springboard for

exploring broader issues, including freedom of speech and strategic decision-

making in litigation.

Part II of this article presents a primer on the right of publicity. After

reviewing the historical development of this right, that part describes current

laws in various states and recounts notable cases of the past few years that

together give a good sense of issues encountered in publicity litigation. Part

III examines recent efforts by scholars and legislators to change publicity law,

the current state of which many have criticized. Drawing on this background,

Part IV suggests particular topics for discussion and assignments that can

be implemented easily in an introductory business law or legal environment

course. Professors might choose among them to complement existing cover-

age of tort law, thereby enhancing students’ understanding of publicity law

and policy and the impact of such law on business decision-making.

MALLOR ET AL., BUSINESS LAW:THE ETHICAL,GLOBAL AND E-COMMERCE ENVIRONMENT 226–28

(17th ed. 2018); MARISA ANNE PAGNATTARO ET AL., THE LEGAL AND REGULATORY ENVIRONMENT

OF BUSINESS 283 (18th ed. 2019); DAVID P. TWOMEY ET AL., ANDERSON’SBUSINESS LAW AND THE

LEGAL ENVIRONMENT:COMPREHENSIVE VOLUME 137–38 (23d ed. 2017).

4CLARKSON ET AL., supra note 3, at 119.

5Id. at 120.

6Mallor et al. provides the most extensive coverage of the books cited supra note 3, featuring an

excerpt from Jordan v. Jewel Food Stores, Inc.,743 F.3d 509 (7th Cir. 2014). That case is considered

infra notes 113–17. Previous articles in this journal have mentioned publicity as an appropriate

topic for coverage. See Lee B. Burgunder, The Selfie-Made Man: A Case Study in Law, Ethics, and

Instagram,33J.L

EGAL STUD.EDUC. 181, 218–32 (2016) (treating “privacy/publicity” as a single

tort and providing homework assignment based on a 2013 California video game case); Adam

Epstein, Teaching Torts with Sports,28J.L

EGAL STUD.EDUC. 117, 134–35 (2011) (briefly men-

tioning sports-related publicity cases). This article adds to that literature by considering more

recent developments in publicity law; engaging in specific analysis of legal, policy, and practical

business implications; and providing additional ideas for classroom coverage.