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Checklist and Commentary on Defenses for Right of Publicity Claims
How courts are determining the parameters of an enforceable right of publicity is a highly active area of entertainment law. There should be a uniform set of defenses to a right of publicity claim. But under existing case law, the right of publicity is schizophrenic; some courts let the cause of action overflow its intended banks, swamping all that lies before it, including the First Amendment, while other courts neuter the action into non-existence.
The simplest way to conceptualize the right of publicity is to assume that, putting aside the defenses discussed below, there is a prima facie case any time anybody uses anyone's name, likeness or voice (or imitation thereof) for any reason. Note the breadth of the action: Anyone can be a plaintiff, not just celebrities. Also, the right applies to any use, not just a commercial use. It does not even require the use of the plaintiff's actual name, likeness or voice (referred to here as “persona”); liability can be based on use of the plaintiff's nickname or a “look-alike” or voice imitation.
Most states recognize the right of publicity as a common-law right. And many states have statutes dealing with the right of publicity, but these statutes are usually in addition to , and not in lieu of, the common-law right (with New York being one notable exception). Thus, plaintiffs usually get the benefit of the broader of the two rights (statutory or common law).
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