Personality rights

Personality rights, sometimes referred to as the right of publicity, are rights for an individual to control the commercial use of their identity, such as name, image, likeness, or other unequivocal identifiers. They are generally considered as property rights, rather than personal rights, and so the validity of personality rights of publicity may survive the death of the individual to varying degrees, depending on the jurisdiction.

Personality rights are generally considered to consist of two types of rights: the right of publicity, or the right to keep one's image and likeness from being commercially exploited without permission or contractual compensation, which is similar (but not identical) to the use of a trademark; and the right to privacy, or the right to be left alone and not have one's personality represented publicly without permission. In common law jurisdictions, publicity rights fall into the realm of the tort of passing off.

There are two main camps of theory regarding publicity rights, specifically in the United States: a more consequential or utilitarian based theory approach and a more moral-based deontological approach. The consequential or utilitarian approach assumes that because there is a potential for creators to obtain rights to an object - here an individual's personality - it will incentive creators economically to create more goods. In contrast, a commonly cited justification for the deontological doctrine, from a policy standpoint, is the notion of natural rights from a Lockean theory of property, and the idea that every individual should have a right to control how their right of publicity is commercialized by a third party, if at all. Often, but not always, the motivation to engage in such commercialization is to help propel sales or visibility for a product or service, which usually amounts to some form of commercial speech (which in turn receives the lowest level of judicial scrutiny).

In contrast with common law jurisdictions, most civil law jurisdictions have specific civil code provisions that protect an individual's image, personal data and other generally private information. Exceptions have been carved out of these general, broad privacy rights when dealing with news and public figures. Thus, while it may violate an ordinary citizen's privacy to speak about their medical records, one is generally allowed to report on more intimate details in the lives of celebrities and politicians.

Unlike most common law jurisdictions the personality rights in civil law are generally inheritable, thus one can make a claim against someone who invades the privacy of a deceased relative if the memory of their character is besmirched by such publication. However there is a fruitful current debate regarding the alienability or transferability of these rights, in the United States specifically, in the spirit of limiting the free transfer of personality rights - as they are freely transferrable currently- to a more protective system to prevent improper access to a right so closely rooted in an individuals personality from a wrongdoer.

Personality rights have developed out of common law concepts of property, trespass and intentional tort. Thus personality rights are, generally speaking, judge-made law, though there are jurisdictions where some aspects of personality rights are statutory. Currently in the United States, all 50 states each have their own way of defining and enforcing the right of publicity, and this creates issues of uniformity across the country because each system is different and not "roughly parallel" to the other states. In some jurisdictions, publicity rights and privacy rights are not clearly distinguished, and the term publicity right is generally used. In a publicity rights case the issue to decide is whether a significant section of the public would be misled into believing (incorrectly) that a commercial arrangement had been concluded between a plaintiff and a defendant under which the plaintiff agreed to the advertising involving the image or reputation of a famous person. The actionable misrepresentation requires a suggestion that the plaintiff has endorsed or licensed the defendant's products, or somehow can exercise control over those products. This is done by way of the tort of passing off.

The meaning of the law is best illustrated by principal cases on the subject.

In Australia, false association or endorsement is actionable via the law of passing off, not a separate law of "right of personality". The Henderson case was a decision of the Supreme Court of New South Wales (both the first instance and appellate jurisdiction). The plaintiffs were ballroom dancers and they sued the defendant in passing off alleging it wrongfully published their photograph on the cover of a gramophone record entitled Strictly for Dancing: Vol. 1. An injunction was granted on the ground that the use suggested the plaintiffs recommended or approved of the defendant's goods, or had some connection with the goods.