Publicity Rights and Image

Exploitation and Legal Control

Gillian Black

• Publisher: Hart Publishing
• Year: 2020
• ISBN:
  9781509937196
• Edition: 1
• Topic: Jura
• Subtopic: Medien- & Unterhaltungsrecht

Academics and practitioners are currently divided on the issues involved in permitting and regulating the commercial exploitation of publicity. 'Publicity' is the practice of using an individual's name, image and reputation to promote products or to provide media coverage, often in gossip magazines and the tabloid press. This book provides a theoretical and multi-jurisdictional review of the nature of publicity practice and its appropriate legal regulation. The book includes a detailed exploration of the justifications advanced in favour of publicity rights and those that are advanced against. Removing the analysis from any one jurisdiction the book examines current academic and judicial perspectives on publicity rights in a range of jurisdictions, drawing out similarities and differences, and revealing a picture of current thinking and practice which is intellectually incoherent. By then clearly defining the practice of publicity and examining justifications for and against, the author is able to bring the nature and shape of the right of publicity into much sharper focus. The book includes a careful consideration of possible limits to any right of publicity, the potential for assigning publicity rights or transferring them post mortem, and whether defences can be offered. The author concludes by arguing for a publicity right which provides a degree of protection for the individual but which is significantly curtailed to recognise valid competing interests. This is a work which will be of interest to academics and practitioners working in the field of publicity, privacy and intellectual property.

Part I

Understanding Publicity: Theory and Practice

2

The Theory of Image and Publicity Rights

I. The Legal Landscape

The social practice of publicity exploitation and the subsequent legal recognition of publicity rights have generated a vast literature. Articles and case commentaries abound in the Western world, from jurisdictions as far apart as Finland and New Zealand, California and Italy. Despite, or perhaps because of, the quantity of literature in this area, it is very difficult to draw together a comprehensive review of the theory and practice in this area, and the jurisprudence remains ‘disturbingly unsettled’.¹ The purpose of this chapter is to identify the key theoretical approaches to publicity rights through an analysis of publicity rights across Western jurisdictions.

Whereas established fields of law, such as contract, benefit from a common terminology and understanding which enables analysis and development of the law to take place in a transnational and comparative framework,² when one turns to publicity there is seemingly little common ground, despite the wealth of literature, academic commentary and case law. For some, publicity is the ‘commercialisation of popularity’³ or the right to control commercial use of identity,⁴ while for others it is media exploitation of privacy.⁵ Case law reveals a wide range of publicity-type circumstances, from the publication, without consent, of an innocent photograph of a young girl taken without her consent,⁶ to the interference with a commercial licence for use of a baseball player’s image, arising from the defendant’s use of the player’s image with his consent.⁷ The opinions, terminology and conclusions resulting from the practice of publicity are far from harmonious.

Nevertheless, it is possible to construct three broad interpretative categories in which to site the academic and judicial material. These categories attempt to recognise that authors are not necessarily tackling exactly the same thing under the umbrella terms of ‘image rights’ or ‘publicity rights’. While it may be desirable to rationalise their approaches, it is not possible to do so within a single scheme. Unlike previous analyses, these categories should not be seen as mapping directly on to different jurisdictions. Instead, they reflect higher-level, theoretical understandings which can be illustrated by material from a range of Civilian and Common law jurisdictions.

With the caveat that any reductionist approach risks over-simplification, and with the acknowledgment that there will always be overlaps, three approaches or categories of publicity rights can be identified as follows:

(a)the ‘publicity as property’ approach;

(b)publicity as a subset of personality rights; and

(c)appropriation of personality.

II.The ‘Publicity as Property’ Approach

The emphasis in the ‘publicity as property’ approach is very much on commercial exploitation of identity as a whole and on the commercial interests at stake in exploitation of popularity. The three key unifying factors in this category are (i) the treatment of the commercial value in identity as a property right; (ii) the centrality of commercial use; and (iii) a tendency to define in wide terms the ‘asset’ being exploited, typically ‘identity’, rather than narrower notions of name or image. The commentators whose work fits into this broad canon are primarily American, and certainly Common lawyers.

This approach can be regarded as the culmination of legal developments since the early 1950s, stemming from two critical events at that time: the judgment of Frank J in Haelan Laboratories v Topps Chewing Gum⁸ in 1953 and the seminal article by Nimmer on ‘The Right of Publicity’,⁹ published a year later.¹⁰

In 1954, Nimmer recognised that

although the well known personality does not wish to hide his light under a bushel of privacy, neither does he wish to have his name, photograph, and likeness reproduced and publicized without his consent or without remuneration to him.¹¹

Where the only legal rights available to the well-known personality look to privacy interests, the celebrity is unlikely to achieve the legal protection he or she seeks. Nimmer examined the doctrines of privacy, unfair competition and contract, and concluded that they were all inadequate to protect this publicity interest.¹² Instead, he argued that the right of publicity ‘must be largely determined by two considerations: first, the economic reality of pecuniary values inherent in publicity and, second, the inadequacy of traditional legal theories in protecting such publicity values’.¹³

Comprehensive legal protection for such values had been granted in a judgment of the ‘highly respected Second Circuit’¹⁴ the year before, Haelan Laboratories.¹⁵ The influence of this case has been strongly felt ever since, with the words of Frank J echoing through much academic work in this area:

We think that, in addition to and independent of the right of privacy (which in New York derives from statute), a man has a right in the publicity value of his photograph… Whether it be labelled a ‘property’ right is immaterial; for here, as often elsewhere, the tag ‘property’ simply symbolizes the fact that courts enforce a claim which has a pecuniary worth.¹⁶

In the decades since Haelan, the right of publicity has ‘matured and taken on its own distinctive identity as an altogether separate legal category’.¹⁷ By 2001, McCarthy was able to state that ‘the right of publicity is simply this: it is the inherent right of every human being to control the commercial use of his or her identity’.¹⁸ This wide concept of ‘identity’, whereby ‘certain celebrity identities can be appropriated as effectively or even more effectively via other means’¹⁹ and not merely their name and image, is an inherent part of this approach to publicity. Westfall and Landau suggest that the ‘vague principle initially underlying the right… as expressed in Haelan’²⁰ has meant that there have been no obvious parameters to the right to guide (or limit) judicial or legislative development,²¹ resulting in protection being extended to ever-wider elements of identity.

Those who adopt this wide approach to publicity regard it as a ‘commercial and business right’²² which should be treated as a kind of intellectual property right and, preferably, a property right.²³ Academic writing in this category is rich in the language of property and commodification,²⁴ while legislation also reflects this approach. In those American states that have passed legislation to regulate publicity rights, a number of them have explicitly stated that publicity is a property right.²⁵

Coombe has stated that ‘personality rights’ (in her terminology) extend:

to encompass the tort of appropriation of personality as it has developed at common law, the proprietary right of publicity that has developed in American law, and rights to prevent the appropriation of, inter alia, names and likenesses that have been enacted in provincial and state statutes as well as federal trademark legislation.²⁶

Coombe relies not only on legislation and case law to inform her understanding, but also on urban legend and popular perceptions of publicity,²⁷ and this is typical of the Common law approach in its breadth and practical scope. One distinction that is highlighted by Coombe is the difference between the ‘right of publicity’ per se and appropriation of personality. This distinction is reflected in the American Law In...