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Invasion of Privacy: Right of publicity

Some states recognize a right of publicity, which protects a celebrity's commercial interest in the exploitation of his or her name or likeness. In some jurisdictions, this right may descend to heirs or be assigned to others after the person's death.

Although use of a famous person's name or likeness, without consent, to sell a product is usually an invasion of privacy, other infringements may not be so clear. When an Ohio television station filmed a performer's entire 15-second human cannonball act for its evening newscast, the U.S. Supreme Court found that the film posed a substantial threat to the economic value of that performance. Therefore, use of the film was a tortious appropriation of the plaintiff's professional property, the court said.¹³

Actress Elizabeth Taylor sued NBC, a television production company, and an author to prevent the network from using her name or likeness or using another actress to play her in a miniseries about her life. Taylor argued that the miniseries should be enjoined because it infringed upon her "right of publicity."¹⁴

The court rejected that argument, explaining that the right of publicity cannot be used to stifle commentary on the lives of public people. The court ruled that an injunction against NBC would constitute an unconstitutional prior restraint against First Amendment-protected expression. Reproductions of past events and biographies fall within the scope of protected First Amendment expression, the court said.

In a 1993 case, the U.S. Court of Appeals (6th Cir.) ordered a district court judge to vacate his order preventing distribution of a book with a jacket containing a photograph of a murder victim with red ink splattered on it to look like a blood stain. The victim's sister had filed suit claiming that the jacket violated the victim's "right of publicity." The court of appeals stated that "even minimal interference with First Amendment freedoms causes injury."¹⁵

Notes

13. Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977).

14. Taylor v. NBC, No. BC 110922 (Cal. Super. Ct. Sept. 29, 1994).

15. Hogg v. Harper Collins Publishers, Inc., No. Cir-93-142 (E.D. Ky. April 12, 1993), rev'd sub. nom., In re Harper Collins Publishers, Inc., No. 93-5501 (6th Cir. 1993).

Next section: Invasion of privacy: Other newsgathering concerns