The Right of Publicity has its root in privacy law. Samuel Warren and Louis Brandeis, in an 1890 article in the Harvard Law Review, first defined this right as the right “to be left alone”. William Prosser followed their lead by enunciating a personal right of privacy based in four categories: 1) Protection against intrusion into one’s private affairs; 2) Avoidance of disclosure of one’s embarrassing private facts; 3) Protection against publicity placing one in a false light in the public eye; and 4) Remedies for appropriation, usually for commercial advantage, of one’s name or likeness.
The first three of these categories sound in tort – they protect a person’s right to privacy; but the fourth category doesn’t fit well with the first three – and appears based more on a personal right – an asset if you will – which sounds more like a property right than a personal one. Reflective of this difference is the fact that rights of privacy have generally not found their way into statutory construction, and are instead articulated and refined in case law – whereas rights of publicity are based equally in statutory law as well as case law.
Three elements are commonly accepted as comprising the Right of Publicity: the use of a well known person’s “name, image and likeness.” While slight differences in this configuration are found in different state statutes, the concept embodied in these elements are found in all of the statutes. What is often missing is a broader view of the right – a view which incorporates not just name, image and likeness, but also any and all personality and appearance characteristics, such as distinctive clothing and voice. These added items, referred to as the “elements of identifiability”, are generally deemed to be “common law” right of publicity elements. The protection of these elements is what critics generally decry as an unwarranted expansion of the right of publicity. California is one state that embraces, through the doctrine of common law right of publicity, this expansive view. Ninth Circuit Chief Judge Alex Kozinski has been sharply critical of this trend, writing spirited dissents in the Vanna White v. Samsung, and Wendt v. Host International cases.
Greenberg, Marc and Lovitz, Michael L., "Right of Publicity and the Intersection of Copyright and Trademark Law" (2012). Publications. Paper 484.