Vanderbilt Law Review

First Page



For more than thirty years, dispute and confusion have marked the emergence and development of the so-called "right of publicity,"' a right that is concerned with the use of attributes of a generally identifiable person to enhance the commercial value of an enterprise. A dense, complex array of cases, accompanied by and analyzed in an even denser array of commentary, has been the vehicle for adumbrating the emergent right. Battle lines are drawn over whether the creature emerging from the fermenting ooze of modern mass communications is a species of "property" or a purely personal "privacy" interest."Everywhere one finds the bodies of tortured analogies:' Is the chimera more like copyright? Should it be in the "trademark" or"service mark" bestiary? Do we perhaps have simply another version of the old torts of misappropriation and unfair competition? There is general agreement only about the genesis of this "haystack in a hurricane." The right of publicity as currently understood was born out of the determination of the Second Circuit in Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc. that a celebrity has a right to damages and other relief for the unauthorized commercial appropriation of the celebrity's persona and that such a right is independent of a common law or statutory right of privacy.