Intellectual Property Law

"Personality rights" generally refers to two types of tort-based rights: the right to privacy and the right of publicity. 

The Right to Privacy

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The principle which protects personal writings and any other productions of the intellect or of the emotions, is the right to privacy, and the law has no new principle to formulate when it extends this protection to the personal appearance, says, acts, and to personal relation, domestic or otherwise.

Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 213 (1890).

That is:

1. The right not to have one's personal matters disclosed or publicized; the right to be left alone.
2. The right against undue government intrusion into fundamental personal issues and decisions.

The right of privacy encompasses four different interests, which map to four distinct types of invasion of privacy:

1. Intrusion
   An encroachment into plaintiff’s physical solitude or seclusion.
2. Public Disclosure of Private Facts
   The disclosure of private information, even though the information is true, in a way a reasonable person would find objectionable, e.g., disclosing the past of a former prostitute.
3. False Light
   The publication of information that places plaintiff in a false light, e.g., using a person’s picture in connection with an article in which no reasonable connection exists; nonetheless, with an implication that such a connection exists.
4. Appropriation
   Use of the plaintiff’s name or likeness for defendant’s benefit without permission.

William L. Prosser, Privacy, 48 Calif. L. Rev. 383 (1960).

There is significant overlap within the definitions of appropriation and the right of publicity.

The Right of Publicity

Generally, the right of publicity prevents the unauthorized commercial use of an individual's name, likeness, or other recognizable aspects of one's persona. It gives an individual the exclusive right to license the use of their identity for commercial promotion. The right of publicity is often divided into five separate interests:

1. Performance
   One’s prerogative to exclusively perform services through which the individual earns a living.
2. Adaptation
   One’s prerogative to exclusively authorize others to create derivative works personifying the person’s performance either as done by the person or others.
3. Personality Products
   The exclusive exploitation of products based on a person’s name, likeness or image, e.g., posters, motion pictures, stills from motion pictures and even bubblegum cards.
4. Endorsement
   The use of person’s name, likeness, image and reputation in connection with the advertising of goods or services.
5. Reputation
   The protection of one’s reputation against misuse even though the use was otherwise authorized. This right embodies the appreciation that an artist’s past performance has a continuing effect on the artist’s future works.

For a concise history, see Right of Publicity.com.

The Constitution

Neither the Right of Publicity nor the Right to Privacy are explicitly mentioned by the U.S. Constitution, although the Right to Privacy has been held to be inherent within the Fourteenth Amendment, see Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925), and penumbras of the First, Third, Fourth, Fifth, and Ninth Amendments, see Griswold v. Connecticut (1965).

Statutes

In Ohio, the right of publicity is governed by statute O.R.C. § 2741, which states:

[A] person shall not use any aspect of an individual's persona for a commercial purpose:

1. During the individual's lifetime;
2. For a period of sixty years after the date of the individual's death; or
3. For a period of ten years after the date of death of a deceased member of the Ohio national guard or the armed forces of the United States.

The statute grants this limited right to Ohio residents (O.R.C § 2741.03), and may be freely transferable and descendible by contract, license, gift, trust, will, or the laws of intestate succession (O.R.C § 2741.04).

For a state-by-state map, see Right of Publicity.com.

Cases

Privacy

• Solitude
  • Shulman v. Group W Productions
  • Jackson v. Playboy
  • Gritzke v. MRA Holding
• Private Facts
  • Cox Broadcating v. Cohn
  • Ross v. Midwest Communications
• False Light
  • Time v. Hill
  • Cantrell v. Forest City Publishing
  • Spahn v. Julian Messner
  • Dresbach v. Doubleday & Co.
  • Street v. National Broadcasting

Publicity

• O’Brien v. Pabst
• Haelan Labratories v. Topps Chewing Gum
• MLK Center for Social Change v. American Heritage Products
• Parker v. LaFace Records
• ETW v. Jirch Publishing
• Zacchini v. Scripps-Howard Broadcasting
• Estate of Presley v. Russen
• Matthews v. Wozencraft
• Hicks v. Casablanca Records
• Polydoros v. Twentieth Century Fox
• Carson v. Here's Johnny Portable Toilets, Inc.
• Vanna White v. Samsung
• Comedy III Productions v. Gary Saderup

For more notable cases, see Right of Publicity.com.