Trademarks

Every person enjoys the legal right to control the commercial value of his or her identity (i.e., name, face, likeness, voice), and to prevent others from exploiting that value for profit without permission. The law of TORTS calls this right the "right of publicity," and defines infringement as any nonconsensual use of a person's identity that is likely to damage its commercial value. Falsity or deception is not an element of a claim for infringement. Rather, to trigger infringement of the right of publicity, the plaintiff's identity must be "identifiable" from the defendant's unauthorized commercial use, whatever form that use might take.

Courts and commentators often compare trademark rights to publicity rights because each set of rights is a form of intellectual property that grants owners the exclusive power to commercially exploit their property. But the right of publicity is only analogous to the law of trademarks and not identical. The key to the right of publicity is the commercial value of a human identity, while the key to the law of trademarks is the use of a word or symbol in such a way that it identifies and distinguishes a commercial source. Thus, while a trademark identifies and distinguishes a commercial source of goods and services, the "persona" protected by right of publicity law identifies a single human being.

Nor should the right of publicity be confused with the right of privacy. Courts recognize that the two rights are clearly separable and rest on quite different legal policies: the right to privacy protects against intrusion upon an individual's private self-esteem and dignity, while the right of publicity protects against commercial injury caused by the nonconsensual commercial appropriation of an individual's personality. Damages for invasion of privacy are usually measured by the mental and physical distress suffered by the plaintiff. On the other hand, damages for infringement of the right to publicity are measured by the loss in business value of the plaintiff's identity. Put simply, publicity rights protect against an injury to the pocketbook, while privacy rights protect against an injury to the psyche.

The right of publicity is not absolute. The use of a name or likeness incidental to the dissemination of a news story in which a person is properly and fairly presented is not actionable as a violation of the right of publicity. However, according to some authorities, the right of publicity can extend to the publication of one's name or picture in nonadvertising portions of a magazine or broadcast.