Downhill Ride for Right of Publicity

Although evolved from the personal right of privacy (the right to be left alone), the right in reality resembles most closely a personal trademark. Just as a trademark protects the public recognition and hence selling power of commercial names or symbols, the right of publicity protects the commercial value of (or good will in) a celebrity's name or image. And of course, most right of publicity actions are joined with claims under '43(a) of Lanham Act for use of false designations of origin. However, despite the clearly commercial nature of the right, and notwithstanding that courts routinely state that proof of injury in fact is a required element of the tort, the precedents offer little if any insight into what is or is not injurious to the commercial value of a celebrity's name or image.

The right is plainly meant to protect commercial interests. See, e.g., White v. Samsung Electronics Assocs, 971 F.2d 1395, 1402 (9th Cir. 1992) (quoting Eastwood v. Superior Court, 149 Cal. App.3d 409, 417, 198 Cal. Rptr. 342 (1983)); Donchez v. Coors Brewing Co., 392 F.3d 1211, 1220 (10th Cir 2004). Yet, it is not unheard of for courts considering complained-of commercial injury to cite the celebrity's emotional distress and personal angst as proof of harm. See, e.g., Waits v. Frito Lay, Inc. 978 F.2d 1093, 1103 (9th Cir. 1992) ('Although the injury stemming from violation of the right of publicity 'may be largely, or even wholly, of an economic or material nature,' we have recognized that 'it is quite possible that the appropriation of the identity of a celebrity may induce humiliation, embarrassment and mental distress.”) (quoting Motschenbacher v. R.J. Reynolds Tobacco Co., 498 F.2d 821, 824 n.11 (9th Cir. 1974)). And even while acknowledging that commercial injury is what distinguishes the right of publicity from the right of privacy, at least one leading commentator has suggested there should be no need actually to prove either commercial injury to the plaintiff or financial gain to the defendant. 1 J. Thomas McCarthy, The Rights of Publicity and Privacy, '3:2 at 113 (2d ed. 2006).