The Right of Publicity: A Matter of Privacy or a Matter of Property?

The right of publicity is a legal concept that exists in American common law and is statutorily enshrined at the state level in 22 states. It exists to prevent the unauthorized use of a person’s likeness, name, or photo for the economic gain of others. As traditionally construed, the right of publicity is owed an individual in order to protect that person’s privacy from infringement.

Privacy is a general goal worth pursuing on account of the fact that it allows individuals to maintain their individuality, which is in turn, functionally beneficial for the enrichment of society. When individuals feel their privacy is protected they are, for example, arguably more likely to utilize their free speech rights thus contributing to the maintenance of civil society and democracy. Property, on the other hand, is valuable in a liberal sense on the grounds that it prevents the tragedy of the commons and thus incentivizes investment, which spurs growth. Each right must thus be justified in different ways since they exist for different purposes (viz. are valuable for different reasons). Treating the right of publicity as more closely akin to a property right than a privacy right will have the attendant effect of shifting the theoretical justifications for that right.

A recent bill proposed in the New York Assembly (Assembly Bill A08155) if passed will do just that: shift the theoretical treatment of the right of publicity from privacy to property. Sponsored by Assembly Member Joseph D. Morelle, the bill would expand the scope of the present statutorily recognized right of publicity in New York State in three particular ways. First, it would expand the geographic scope of the law by applying it to any person “[irrespective] of the law of the domicile, residence or citizenship of the individual.” Second, it would make, “a living or deceased individual's name, voice, signature and likeness, individually and collectively, personal property, freely transferable… by contract or by means of any trust or testamentary instrument…” Third, it would apply to a person even after their death provided they make arrangements to transfer the right to their heirs.

Though the bill is unlikely to pass as it was referred to a third reading (i.e. tabled in perpetuity) on June 20th, it exemplifies an important trend (since 2012, Massachusetts and a number of others states have either proposed or adopted similar legislation) in conceptual understandings of the right of publicity, namely the transition from understanding the right as a function of privacy owed to the individual, to an understanding as of the right as part of an individual’s property. Under the former theoretical regime, celebrities were most able to mobilize the right since breaches of their privacy are much more high profile than is the case for the average citizen. Sports stars like Pierre Garçon and Kareem Abdul Jabar filed cases to prevent the unauthorized use of their likeness, as did T.V. and movie stars like Dustin Hoffman and Johnny Carson. Even the estates of deceased civil rights heroes like Rosa Parks have taken to the courts. In most cases, the issues revolved around the unauthorized use of the celebrities’ likeness for economic gain – to sell portable toilets in the Carson case, to sell fantasy football in the Garçon case – which more or less excluded the average person from jurisprudence. After all, what company would, without permission, use the face of person x to sell their products. The potential costs to secure the permission of person x would presumably be fairly low. However, the new trend exemplified by the proposed New York bill would probably mean that plaintiffs in right of publicity cases in New York would no longer be almost exclusively celebrities. As a property right and not a right of privacy, legal recourse under the right of publicity would be more available to those whose intimate details are not matters of public concern.

This new political/legal trend has perhaps evolved in response to increasing public demand (some of which is evident in the Lumen Database and will be the topic of a forthcoming research