WORLD FAMOUS (By, Say, New Jersey Standards): Expanding the Right of Publicity Nationally and Internationally

ILN IP Insider

James P. Flynn, Managing Director of the Firm and Member in the Litigation and Employment, Labor & Workforce Management practices, in the firm’s Newark office, authored an article in ILN IP Insider, titled “WORLD FAMOUS (By, Say, New Jersey Standards): Expanding the Right of Publicity Nationally and Internationally.”

Following is an excerpt:

Springsteen.

Sinatra.

Chuck Wepner (for at least one night in 1975 and then through the “Rocky” avatar).

At least some of the people that rest stops on the New Jersey Turnpike are named after.

These public figures are, or were, world-famous, and certainly had made a name for themselves outside of the Garden State, even if their growth as artists, authors, sports figures or icons was at some point nurtured in the fertile ground of the third state to enter the union.  But, if either Springsteen or Sinatra, for example, wished to protect their image on the world stage or before a national audience, neither could invoke, directly or effectively, federal or international law.

That is because the right of publicity is not something protected by federal trademark or copyright law, or by compact or treaty.  As Professor McCarthy has been noted (by Ahmad and Swain) to have stated, “’The right of publicity is not a kind of trademark. It is not just a species of copyright. And it is not just another kind of privacy right. It is none of these things, although it bears some family resemblance to all three.’” The right of publicity is one of those strange legal rights that depends on the law of one state or one country even if the facts used to vindicate one’s rights to publicity (or, as it is known in some places outside the United States, celebrity) are national or international in scope.  The “right of publicity is a creature of state law, and its violation gives rise to a cause of action for the commercial tort of unfair competition.” ETW Corp. v. Jireh Pub., Inc., 332 F.3d 915, 928 (6th Cir. 2003).  In an age where fame is often created, claimed and credited on a world wide web, one must ask whether it makes sense to define the legal rights associated with celebrity by such local standards.

One of the early US cases recognizing by name “the right of publicity” was in fact a New Jersey federal court case, Estate of Presley v. Russen, 513 F. Supp. 1339  (DNJ 1981). ...