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right of publicity and right of privacy: an overview

The Right of Publicity prevents the unauthorized commercial use of an individual'' name, likeness, or other recognizable aspects of one's persona. It gives an individual the exclusive right to license the use of their identity for commercial promotion.

In the United States, the Right of Publicity is largely protected by state common or statutory law. Only about half the states have distinctly recognized a Right of Publicity. Of these, many do not recognize a right by that name but protect it as part of the Right of Privacy. The Restatement Second of Torts recognizes four types of invasions of privacy: intrusion, appropriation of name or likeness, unreasonable publicity and false light. See Restatement (Second) Of Torts 652A - 652I. Under the Restatement's formulation, the invasion of the Right of Publicity is most similar to the unauthorized appropriation of one's name or likeness. See Restatement (Second) of Torts 652C, comments a & b, illustrations 1 & 2.

In other states the Right of Publicity is protected through the law of unfair competition. Actions for the tort of misappropriation or for a wrongful attempt to "pass off" the product as endorsed or produced by the individual help to protect the Right of Publicity. See Unfair Competition.

If a person can establish an aspect of his or her identity as a trademark, protection may be provided by Federal law. See Trademark. The Federal Lanham Act can also provide protection where a person's identity is used to falsely advertise a product or designate its origin. See 1125 of The Lanham Act.


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Federal Material

    Federal Judicial Decisions

    State Material

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      Key Internet Sources

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    • Good Starting Point in Print: J. Thomas McCarthy, The Rights of Publicity And Privacy, West Group (1987)

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