Intellectual Property (IP) law: Rights of Publicity and Privacy

Navigating the Intersection of Intellectual Property,

Publicity, and Privacy Rights

In this lecture, we explore the complex landscape of rights of publicity and privacy, delving into their definitions, legal frameworks, key cases, the relationship between these rights and intellectual property, and the challenges posed by the digital age.

Definition and Scope of Rights of Publicity

Rights of Publicity refer to the right of an individual to control and monetize their own identity, particularly their name, likeness, image, and other personally identifiable elements. This right allows individuals to prevent unauthorized commercial use of their persona. The scope of these rights can vary significantly by jurisdiction but generally covers:

Name

Voice

Signature

Photograph

Other distinctive personal aspects

The right is primarily aimed at protecting the commercial value derived from fame or public recognition, ensuring that individuals can control if, how, and where their identity is used for commercial purposes.

Legal Frameworks and Key Cases

Rights of publicity are governed by state law in the United States, leading to a variety of interpretations and applications. For instance, California has very strong publicity rights that extend posthumously, while other states may have more limited protections or none at all for deceased individuals.

Key Cases Include:

Haelan Laboratories v. Topps Chewing Gum: Established the basis for the modern right of publicity in the United States.

Zacchini v. Scripps-Howard Broadcasting Co.: Affirmed the right of an individual to control the commercial use of their performance.

In other jurisdictions, rights of publicity might be protected under broader privacy laws or specific personality rights legislation.

Relationship Between Privacy Rights and IP

Privacy rights and rights of publicity often intersect but serve different purposes. While privacy rights protect individuals from unwanted intrusion into their private lives and unauthorized dissemination of personal information, rights of publicity are more about controlling the economic use of one’s identity.

Intellectual Property and Publicity Rights:

Publicity rights can often be licensed and assigned, similar to other forms of intellectual property.

The clash between copyright and publicity rights can arise when copyrighted works feature real individuals, such as in biopics or documentaries.

Challenges in the Digital Age

The advent of digital media and technology poses new challenges for the enforcement and conceptualization of privacy and publicity rights:

Social Media: Platforms where personal images and videos can be widely disseminated and commercialized pose unique challenges for controlling the use of one's image.

Deepfakes and AI: Technologies that can realistically replicate an individual’s likeness and voice raise significant concerns for unauthorized uses.

Global Reach: The internet enables the global distribution of content, complicating jurisdictional boundaries and the enforcement of rights.

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