Re: Rights in real characters

On 8/8/97, Bob Cumbow <cumbr[_at_]perkinscoie.com> wrote:
>
> John R. Allison <allisonj[_at_]mail.utexas.edu> wrote:
> >
> > Although the law pertaining to [right of publicity] certainly may
> > vary among states, does it not apply only when the plaintiff's name,
> > likeness, voice, or other aspect of his or her identity has commercial
> > value to the plaintiff himself (a value which is appropriated for
> > commercial gain by the defendant)?
>
> My understanding is that the law of right of publicity proceeds from
> the assumption that EVERYONE's persona has commercial value to that
> person, whether that value is exploited by the individual or not. This
> is why RoP is not limited to celebrities. The question whether the
> individual has actually exploited that persona commercially during
> his/her lifetime goes only to the issue of whether the RoP is
> descendable to the person's heirs, NOT to the question of whether the
> person has commercially valuable RoP in the first place.

If I'm wrong, I certainly stand corrected. After all, I ended my previous post with "Am I wrong?" Even if your statement about proceeding from the assumption that everyonone's persona has commercial value to that person irrespective of whether he exploits it is correct, it seems that this approach will almost never move beyond the theoretical. Who is going to commercially appropriate the persona of a person having no public recognition value? The other privacy torts provide the necessary protection for most of us. It is easy, of course, to see the role played by the right of publicity in the case if entertainers, actors, and other celebrities.

It just seems to me that current political figures are different, but it is very difficult to put a finger on the precise consequences of this perceived difference. I know of no cases in which a political figure has asserted violation of the ROP; this could be explained by the practical reality that a political figure is just not likely to sue under the ROP. If the nonconsensual commercial use of a political figure's persona is defamatory or extraordinarily offensive, I can see some some political figures asserting defamation or one of the non-ROP privacy torts. As you certainly know, the burden for this type of plaintiff making this type of claim is extremely difficult to carry. Somehow, though, it is difficult for me to conceive of a political figure successfully asserting the ROP. Again, I am having difficulty pinning down the theoretical basis for this strong visceral feeling. I think that the notion of a political figure successfully asserting the ROP involves charting new waters; the practical fact that a politician is so unlikely to sue under the ROP may mean that we could never receive definitive answers. It is, however, a fascinating foray into the cerebral sandbox.

John R. Allison
Graduate School of Business
University of Texas at Austin
allisonj[_at_]mail.utexas.edu, Received on Sat Aug 09 1997 - 14:37:36 GMT