Take My Likeness, Please: Threats to the Right of Publicity in Light of State Farm Mutual Automobile Insurance Co. v. Campbell
Note by Hillel Michael Elkins
From Volume 78, Number 5 (July, 2005)
Celebrities were recently deprived of a valuable asset. This time, however, the perpetrator was not an Internet hacker, a supermarket tabloid, or an unscrupulous business manager. It was the United States Supreme Court. Although State Farm Mutual Automobile Insurance Co. v. Campbell concerns the constitutionality of punitive damages, it may have the unintended effect of limiting celebrities’ nationwide rights of publicity.
The right of publicity affords an individual an interest in the use of that individual’s name, likeness, photograph, voice, and other personal characteristics in connection with commercial exploitation and the marketing of goods and services. It is the “inherent right of every human being to control the commercial use of his or her identity… and recover in court damages and the commercial value of an unpermitted taking.” Although this body of law has its roots in privacy rights, such as those concerning public disclosure of embarrassing facts, the right of publicity is an explicit recognition of the commercial injury caused by the use of a person’s identity.
As of early 2003, eighteen states recognized common law rights of publicity and seventeen states had statutory provisions. While there is some overlap, as some states recognize both statutory and common law rights of publicity, twenty-two states do not recognize any such right at all.
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