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Establishing Injury Presents Challenge In Lawsuits over Right of Publicity

By Jonathan E. Moskin
November 02, 2006

The right of publicity ' the right of individuals to protect the commercial uses of their names and images ' is now a familiar concept. Given CKX Inc.'s purchase for a reported $50 million of rights to Muhammad Ali's name and the company's $100 million acquisition of Elvis Presley's publicity rights, there can be no question that the right not only can have great value, but has achieved a certain settled status. And yet, the metes and bounds of the right remain elusive at best.

Personal Trademark

Although evolved from the personal right of privacy (the right to be left alone), in reality the right 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 goodwill in) a celebrity's name or image. Most right of publicity actions are joined with claims under Sec. 43(a) of the 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.

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