Right of publicity laws in the United States protect an individual's name, image, likeness, and other indicia of identity from unauthorized commercial exploitation. These laws are distinct from privacy laws, which guard against intrusion into personal life, whereas the right of publicity focuses on the economic value of a person's identity. The scope and application of these laws vary significantly across states, creating a complex legal landscape for businesses, artists, and individuals.
The right of publicity is not a federal right but is governed by state law, leading to a patchwork of protections. Some states have enacted specific statutes, while others rely on common law principles developed through court decisions. The absence of a uniform federal standard means that the extent of protection can depend on where a claim is filed, what the plaintiff's state of residence is, and where the unauthorized use occurred. This state-by-state variation is a central feature of the legal framework, affecting everything from celebrity endorsements to the use of personal data in emerging technologies.
Historical Development
The concept of a right of publicity emerged in the mid-20th century, building on earlier privacy torts. In 1953, the U.S. Court of Appeals for the Second Circuit recognized a distinct right in Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., holding that a person has an exclusive right to the commercial value of their photograph. This decision was influential, and in 1960, legal scholar William Prosser categorized privacy torts, including appropriation of name or likeness, which laid the groundwork for separate publicity rights.
New York was the first state to codify a statutory right, with its Civil Rights Law Sections 50 and 51, enacted in 1903, originally as a privacy statute. Over time, courts and legislatures expanded these protections. California followed with a common law right recognized in Lugosi v. Universal Pictures (1979) and later codified in California Civil Code Section 3344, which covers name, voice, signature, photograph, or likeness. These early developments set the stage for modern variations.
Statutory vs. Common Law Protections
States differ in whether they protect publicity rights through statutes, common law, or both. California and New York have comprehensive statutes, but their approaches differ. New York's statute is narrower, covering only name, portrait, picture, or voice, and requires that the use be for advertising or trade purposes. California's statute is broader, including signature and likeness, and allows for post-mortem rights, which New York only added in 2021.
Common law states, such as Texas and Florida, rely on court decisions. In these jurisdictions, plaintiffs must typically prove that their identity has commercial value and that the defendant used it without consent for a commercial purpose. For example, Texas recognizes a common law right of publicity, but its scope is less defined than in statutory states. This can lead to uncertainty, as courts interpret the right on a case-by-case basis.
Post-Mortem Rights
A significant area of divergence is whether publicity rights survive death. Some states, like California, extend protection for 70 years after death, allowing heirs or assignees to control commercial use. Tennessee, home to many music industry figures, provides 10 years of post-mortem protection, renewable. In contrast, New York's statute, as amended in 2021, grants 40 years of post-mortem rights, but only for deceased personalities who were domiciled in the state.
Other states, such as Nebraska and Oklahoma, have longer terms, with Oklahoma offering 100 years. However, states like Utah and Wisconsin do not recognize post-mortem rights, meaning the right terminates at death. This inconsistency creates challenges for estates managing the likenesses of deceased celebrities, as they must navigate different rules depending on where the use occurs.
Scope of Protected Indicia
The types of identity protected vary. Most states cover name and likeness, but some include voice, signature, and even distinctive characteristics. California's statute explicitly includes voice, which has been litigated in cases involving sound-alikes. For instance, in Midler v. Ford Motor Co. (1988), singer Bette Midler successfully sued Ford for using a singer who imitated her voice in a commercial, even though her name or image was not used.
Some states extend protection to catchphrases or other personal attributes. For example, in White v. Samsung Electronics America, Inc. (1992), Vanna White won a case against Samsung for a robot dressed in a wig and gown that evoked her image, though the robot did not use her name or likeness. However, the scope is not uniform; courts in other states have rejected similar claims, focusing on whether the use is sufficiently identifiable.
Commercial Use Requirement
All right of publicity laws require that the use be for commercial purposes, such as advertising, selling products, or endorsements. News reporting, commentary, and artistic expression are generally exempt. For example, using a celebrity's image in a news article or biography is protected under the First Amendment. However, the line between commercial and expressive use can be blurry, especially in advertising that incorporates artistic elements.
Courts often apply a balancing test, weighing the public interest in free expression against the individual's economic interest. In Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001), the California Supreme Court held that a realistic drawing of the Three Stooges was protected as artistic expression, even though it was sold for profit. This case established a transformative use test, which asks whether the work adds significant new expression beyond mere likeness.
Digital and AI Implications
The rise of Artificial intelligence and Generative AI has introduced new challenges. Deep learning models can create realistic images, voices, and videos of individuals without their consent, raising questions about the applicability of existing laws. For example, a Large language model might generate text that mimics a person's style, or a Neural network could produce a deepfake video. These uses may not fit neatly into traditional categories of name or likeness.
Some states have begun to address these issues. Tennessee's Ensuring Likeness Voice and Image Security (ELVIS) Act, passed in 2024, explicitly protects against unauthorized digital replicas, including those created by Machine learning. Similarly, California and New York have considered legislation to cover AI-generated likenesses. However, the patchwork nature of state laws means that protections vary, and federal legislation has not been enacted as of 2025.
Notable Cases and Controversies
Several high-profile cases have shaped the law. In Zacchini v. Scripps-Howard Broadcasting Co. (1977), the U.S. Supreme Court upheld a right of publicity claim for the broadcast of a human cannonball act, ruling that the First Amendment did not shield the unauthorized broadcast of an entire performance. This remains the only Supreme Court case directly on point.
More recently, disputes have involved athletes and entertainers. For instance, in Davis v. Electronic Arts Inc. (2013), the Ninth Circuit held that EA's use of former NFL players' likenesses in video games was not protected by the First Amendment, as the games were commercial products. This case highlighted the tension between creative works and publicity rights, leading to settlements and changes in industry practices.
State-by-State Comparison
A practical overview shows the diversity. California and New York are the most influential, given their entertainment industries. California offers broad common law and statutory protections, including post-mortem rights. New York's statute is more limited but was expanded in 2021 to include post-mortem rights and digital replicas. States like Illinois and Indiana have robust statutes, with Indiana providing 100 years of post-mortem protection.
Conversely, states such as North Dakota and South Dakota have no specific publicity rights statutes, relying on general privacy laws. This means that in those states, a claim might fail if the use does not meet the stricter privacy standards. For businesses, this variation requires careful legal analysis, often leading to forum shopping or contractual choice-of-law provisions.
Future Directions
As technology evolves, the right of publicity is likely to face further challenges. The use of Transformer (architecture) models and Deep learning in content creation may outpace legal frameworks. Some scholars advocate for a federal statute to create uniformity, while others argue that state-level experimentation is beneficial. The OpenAI and Google DeepMind developments in generative AI have prompted calls for clearer rules on consent and compensation.
Legislative efforts, such as the proposed federal No Fakes Act, have been introduced but not passed. As of 2025, the legal landscape remains fragmented, with states taking different approaches to emerging issues. Individuals and companies must stay informed about the laws in each jurisdiction where they operate, as the right of publicity continues to adapt to new forms of media and technology.