What good is fame if you can't be famous in your own right? Publicity right woes of the almost famous.

• Author: Farr, Porsche

1. INTRODUCTION 467 II. THE LAW OF RIGHT OF PUBLICITY 468 A. Right to be Let Alone 469 B. Distinguishing Publicity from Privacy 470 C. Right of Publicity in the Light of Public Policy 471 III. STATUTORY PROTECTION OF PUBLICITY RIGHTS 474 IV. SIGNING THEIR LIVES AWAY 475 A. The NCAA Swindle 475 B. The Reality Is ... the T.V. Networks Own You 478 V. POTENTIAL FOR STATUTORY INTERVENTION 480 A. Proposed Statute 481 VI. CONCLUSION 481 I. INTRODUCTION

   Television programming changed drastically over the last few years. Reality television erupted on every major network, while the popularity of sitcoms and other daytime television shows diminished. (1) College sports games now share the spotlight with professional sports games, and may be more appealing to some sports fans. (2) Reality television stars and amateur athletes (hereafter referred to as "Emerging Celebrities") play a large role in the billions-of-dollars generated from television airplay each year. (3) Unfortunately, industry standard contracts force these Emerging Celebrities to give up significant control of their image, which leads to the loss of potential income. Current law forces Emerging Celebrities to attribute these major losses to the cost of fame, often because they knowingly signed and entered into agreements that expressly forfeited certain rights to their persona. (4)

   If this major gap in American contract law and mainstream entertainment continues to exist, Emerging Celebrities will continue to forfeit millions-of-dollars of potential income. This Comment will discuss the potential legal injustice of standard contracts used in the reality television and amateur sports industries, and propose a potential statutory solution. Part II will discuss the history and development of publicity rights in the United States. Next, Part III will briefly discuss the various statutes currently in effect to protect publicity rights. Then, Part IV will discuss how current industry standard contracts force Emerging Celebrities to forfeit a substantial and valuable portion of their publicity rights. Finally, Part V will discuss a proposed statute that would prohibit enforcement of publicity rights clauses that force Emerging Celebrities to assign excessive portions of a their publicity rights to another person or entity.

2. The Law of Right of Publicity

   Modern right of publicity law consists of a dichotomy of privacy law and property law. (5) The right to privacy is grounded in the belief that individuals reserve the right to be free from having their image ruined by "idle gossip" or negative statements published in the press. (6) The economic basis for the right of publicity recognizes an individual's right to own a property-type interest in his or her marketable image, which includes his or her name, picture, likeness, voice, and other personal characteristics. (7) Modern legal trends led to various state statutes and cases that give this area of law more defined standards. (8)

   1. Right to be Let Alone (9)

      Legal Scholars first discussed the right of publicity in the nineteenth-century under the guise of the right of privacy. The invention of the printing press and flash photography brought about issues of men wishing "to be let alone" in their private lives. (10) In the late 1800s, legal scholars Samuel Warren and Louis Brandeis noted that the unauthorized circulation of private photographs along with gossip was becoming a trade in the newspaper industry, and necessitated legal protection for an individual's privacy. (11) They asserted that the protections afforded to the intellectual property of every person are the same types of protections that each person should be afforded for his or her publicity. (12) Ultimately, Warren and Brandeis felt that the invasion of an individual's privacy constituted an actionable tort claim, and to date a majority of legal scholars and professionals have agreed with them. (13)

      Despite the majority eventually following Warren and Brandeis' theory, everybody did not immediately accept their position. Only twelve years after the publication of their privacy theories, a New York appellate court found that a right to privacy was not actionable absent libel (malicious gossip). (14) At the time of the decision, New York law recognized libel as a tort. (15) In Roberson v. Rochester Folding Box, Co., a flourmill company knowingly printed and circulated the likeness of an infant child on its packages of flour without receiving permission from the child's parents. (16) Soon thereafter, the child's parents sought monetary damages, as well as an injunction to prevent further circulation of the image. (17) Though the majority found that these events did not lead to a cause of action, the dissent argued that the right to privacy gave rise to a cause of action and should be a legally accepted principle. (18) In the aftermath of this case, the New York legislature decided to enact a privacy statute that followed the dissent's argument and made it a tort to use a person's image for commercial purposes without that person's consent. (19) This case became the precursor to several other states and jurisdictions that would later enact laws to protect one's personal image. (20)

   2. Distinguishing Publicity from Privacy

      As publicity law developed, a murky line appeared between the difference of privacy law and publicity law. A federal court drew a distinction between the two in the 1953 case Haelen Laboratories, Inc. v. Topps Chewing Gum. (21) There, a federal circuit judge distinguished publicity rights of an individual from privacy rights by focusing on the economic interests of the plaintiff's persona. (22) The lawsuit between the two rival chewing gum companies arose from a dispute regarding the use of a well-known, professional baseball player's ("Player") photograph for advertising and selling purposes. (23) The plaintiff, Haelen Laboratories, Inc. ("Haelen"), sold, manufactured, and distributed chewing gum. (24) Haelen had entered into a contract with the Player in which he authorized Haelen to use his photograph in connection with the advertising and selling of Haelen's products. (25) As a condition of the contract, the Player agreed not to grant other rival companies the right to use his photograph to advertise or sell the rival companies products. (26) With full knowledge of the contract between the Player and Haelen, Haelen's rival and the defendant in the case--Topps Chewing Gum ("Topps")--deliberately induced the Player to enter into a contract that allowed Topps to also use the Player's photograph in connection with advertising and selling. (27) Haelen brought suit against Topps alleging that it deliberately invaded Haelen's right to exclusively use the Player's photograph for its business purposes. (28)

      In court, Topps argued that by inducing the Player to enter into a contract with Topps, the only actionable tort would be a statutory invasion of privacy, which was a personal interest and not an assignable property interest. (29) Therefore, Topps argued that Haelen did not have an actionable claim because it could not have received a property interest from the contract it entered into with the Player. (30) A majority of the court rejected this argument and determined that every person has a right of publicity independent of his or her right of privacy. (31) More specifically, the right of publicity consisted of the person's value in his photograph, image, or likeness. (32) The court further noted that the value of a person's publicity right rested in each person's right to exclusively grant the use of his publicity as he so choses. (33) Essentially, this ruling distinguished the difference between a person's right to be left alone to his private affairs and his right to benefit from granting others the right to use his image for commercial purposes.

   3. Right of Publicity in the Light of Public Policy

      Recent case law shows that courts have acknowledged that certain contract terms containing publicity rights clauses should be considered unenforceable as a matter of public policy. For example, in 2006 a Missouri court determined that when parties enter into an agreement granting a party the right to use a...