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Privacy Rights in the Digital Age

Publicity, right of

by J. Lyn Entrikin

A tort claim that many states recognize as a derivation of one of the traditional four privacy torts. Broadly defined, the right of publicity recognizes celebrities' economic interest in controlling or limiting the distribution of their public identities or personas. States that recognize the right of publicity often define a person's image or identity quite broadly to include one's name, likeness, voice, or any other identifiable trait that evokes the celebrity's image in the public eye.

Beginning in the early 1900s, courts in several states began to recognize the right of a private person to recover compensation from anyone who violated the right to privacy. The courts recognized the emotional harm suffered by individuals whose privacy was invaded without their consent. Some of the earliest privacy tort claims were filed against advertising companies for using the photographs or sketches of private individuals in commercial advertisements without the subjects' consent. One of the four most widely recognized privacy torts allows a person to sue someone else who uses the person's name or likeness for the other's benefit without authorization. Like all privacy torts, this state law right was designed to provide a legal remedy for the emotional harm that a private person suffers from an invasion or violation of the right to privacy.

Traditionally, the right to privacy was considered waived if a person engaged in actions that the courts considered inconsistent with a desire for privacy. For example, when a celebrity entertainer or a political figure sued for violating the right to privacy, early courts would not recognize the claim because the famous person was considered to have implicitly given up the right to remain unknown and anonymous, out of the public eye.

As the right to privacy evolved, state courts gradually allowed even celebrities to recover compensation from another person, usually a business, for using their names and likenesses for commercial purposes without the celebrity's consent. In effect, the privacy right traditionally known as protection from misappropriation of a person's name or likeness was extended to celebrities. States that have recognized right of publicity claims have implicitly disregarded the fact that celebrities, by definition, have waived their privacy rights by becoming famous personalities.

The policy foundation for the right of publicity is twofold. First, recognizing the right allows a celebrity to seek compensation when someone else exploits the value of a celebrity's well-known identity without sharing the economic gain with the celebrity. Second, the right of publicity recognizes that a celebrity has an economic interest in limiting or controlling how the celebrity's recognizable image is distributed commercially for advertising or other purposes. For example, some commercial uses of a celebrity's identity might harm or otherwise diminish the person's professional reputation. If the celebrity does not consent, the unauthorized use may harm the capacity to earn an income from the celebrity's public identity. When a court recognizes a celebrity's right of publicity claim, the law requires the defending party who exploited that right to compensate the celebrity for the lost economic value of the celebrity's public persona.

Along with the development of mass media, the right of publicity evolved gradually, beginning with the so-called golden age of radio in the 1930s and 1940s. Fred Waring, a famous orchestra conductor, filed a lawsuit against a radio broadcasting company to prevent it from playing a musical recording by his orchestra. The case reached the Pennsylvania Supreme Court in 1937, and the court upheld Waring's right to stop the broadcasting company from playing the record on the radio without his consent.

The Pennsylvania Supreme Court began its opinion by observing the novelty of Waring's claim:

The problems involved in this case have never before been presented to an American or an English court. They challenge the vaunted genius of the law to adapt itself to new social and industrial conditions and to the progress of science and invention. For the first time in history human action can be photographed and visually reportrayed by the motion picture. Sound can now be mechanically captured and reproduced, not only by means of the phonographs for an audience physically present, but, through broadcasting, for practically all the world as simultaneous auditors. Just as the birth of the printing press made it necessary for equity to inaugurate a protection for literary and intellectual property, so these latter-day inventions make demands upon the creative and ever-evolving energy of equity to extend that protection so as adequately to do justice under current conditions of life. (Waring v. WDAS Broad. Station, 194 A. 631 (Pa. 1937))

The Pennsylvania Supreme Court recognized that Waring's interest in controlling the publication of the musical recording was in the nature of a property right to prevent misappropriation of the orchestra's unique sound. The court also relied on the state's common law right against unfair competition in enforcing Waring's claim against the broadcasting company.

In 1953, a famous professional boxer filed a lawsuit seeking compensation from a television station for airing a movie, without his consent, depicting one of his old prizefights. The lawsuit eventually made its way to the U.S. Court of Appeals for the Third Circuit in Ettore v. Philco Television Broad. Corp., 229 F.2d 481 (3d Cir., 1956). The legal issue was whether the prizefighter had a legal remedy against the television station for airing the movie in four different states without his consent. The Third Circuit Court of Appeals first observed that the right asserted was more akin to a property right than a right to privacy: “The state of the law is still that of a haystack in a hurricane …. We read of the right of privacy, of invasion of property rights, of breach of contract, of equitable servitude, of unfair competition; and there are even suggestions of unjust enrichment.” In holding for the prizefighter, the court reasoned that broadcasting the boxer's performance without compensating him was a legal wrong that “vitally affect[ed] his livelihood.”

One of the most important court cases involving the state right of publicity was Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977), decided by the U.S. Supreme Court in 1977. The case involved an entertainer who had performed his human cannonball act at a county fair in Ohio. A television reporter videotaped the live performance without the entertainer's consent. Later that day, the video was replayed on a television news program. Hugo Zacchini, the entertainer, sued the news broadcasting company for violating his “right to the publicity value of his performance.” The broadcasting company argued that it had a First Amendment constitutional right to air the videotape because it was broadcasting a matter of public interest. In effect, the company argued that its First Amendment privilege to air the news on television prevented the entertainer from filing suit under Ohio law to enforce his right to bar the unauthorized replay of the video recording. The Supreme Court upheld the entertainer's right under Ohio law, rejecting the broadcaster's First Amendment argument. Thus, the Supreme Court disagreed that the broadcasting company's right to disseminate the news outweighed Zacchini's right to protect the economic value of his human cannonball performance.

The right of publicity has since been recognized in one form or another by about half the states. In some states, the courts have interpreted the right to privacy (in the form of misappropriation of one's name or likeness) to extend to celebrities, even though they have willingly become public personalities. In other states, the courts have recognized a distinct right of publicity, acknowledging that the right provides a remedy not for the emotional distress traditionally associated with an invasion of privacy but rather for the reduced economic value of one's public persona or identity. An increasing number of states have enacted statutes that authorize civil claims for violating the right of publicity.

One of the most interesting recent developments with respect to the right of publicity involves the nature of the right as a descendible property interest. The common law has traditionally recognized the right to privacy as a personal right that expires at the end of the individual's life. In contrast, the right of publicity reflects the economic value of the celebrity's public persona. For that reason, many courts have addressed whether the right of publicity survives beyond the lifetime of the celebrity.

Some state courts have been reluctant to interpret the common law right of publicity to extend to the celebrity's heirs. However, an increasing number of states have enacted statutes that allow the right of publicity to survive for a number of years after the death of the celebrity. Indiana's statute is among the most liberal; it provides that the right of publicity continues for 100 years after the celebrity's death. Other states, including Pennsylvania and California, have enacted statutes extending the right of publicity for thirty to seventy years after death. Based on these newly enacted statutes, some courts have retroactively applied them to protect the rights of publicity of long-deceased celebrities, including Dr. Martin Luther King, Marilyn Monroe, Elvis Presley, and “Muppets” creator Jim Henson.

Further Reading

1 

Elder, David A. Privacy Torts § 6.7. Westlaw current through June 2015 (descendibility and inheritability of the right of publicity).

2 

Faber Jonathan L. “Indiana: A Celebrity-Friendly Jurisdiction.” Res Gestae: J. Ind. State B. Ass'n 43 (March 2000). http://www.luminarygroup.com/images/ResGestae_2000–03.pdf.

3 

Richardson, Jeffrey. “Michigan Needs a Statutory Right of Publicity.” Michigan Business Journal 86, no. 26 (September 2007).

4 

Savare, Matthew, and John Wintermute. “Right of Publicity Issues in Emerging Media.” Los Angeles Law 38, no. 10 (May 2015)

See also: Consent; Legal evolution of privacy rights in the United States; The Right to Privacy

Citation Types

MLA 9th
Entrikin, J. Lyn. "Publicity, Right Of." Privacy Rights in the Digital Age, edited by Christopher T. Anglim & JD, Salem Press, 2016. Salem Online, online.salempress.com/articleDetails.do?articleName=PRDA_0177.
APA 7th
Entrikin, J. L. (2016). Publicity, right of. In C. Anglim & JD (Ed.), Privacy Rights in the Digital Age. Salem Press. online.salempress.com.
CMOS 17th
Entrikin, J. Lyn. "Publicity, Right Of." Edited by Christopher T. Anglim & JD. Privacy Rights in the Digital Age. Hackensack: Salem Press, 2016. Accessed May 30, 2026. online.salempress.com.