How Professional and College Athletes ‘ Right of Publicity are b ecoming an
the right of publicity but more importantly the present state of the right of publicity as applied to the
aforementioned three mentioned classes. In conclusion, this paper confirms it appears that non-athlete
celebrities do enjoy a favorable interpretation of this tort claim co mpared to professional athletes with
collegiate athletes faring the worst.
2. The Right of Publicity – Historical Origins
The right of publicity is a creation of state and common law, as no federal right of publicity exists,
thus, protections vary from state to state in the thirt y states that currently recognize this right.
of publicity was born out of the right of p rivacy.
However, the fact that it was originally considered part
of the right of privacy has confused many courts over the years.
In 1 890, Samuel D. Warren and Louis Brandeis wrote an article in the Harvard Law Review titled
"The Right to Privac y," which first addressed the right to privacy and the legal arguments for legal
recognition of this right b y the courts.
Warren and Brandeis suggested that "the common law creates a
'common zone' in each person's life that i s immune from the prying of neighbors, the press and the
The article further suggested that the law should protect people's feelings from public intrusion,
and not just protect individuals from physical harm.
"Cases early in the twentieth century concerned a variation on the theme of the 1890 Warren and
Brandeis article: the unpermitted use of a person's name or picture in advertising."
A split of authority
soon developed regarding the applicability of the right of privacy in such ca ses.
The cases that did grant
restitution for the unauthorized use o f a person's name or picture in advertising did so based on traditional
tort law concepts such as personal injur y to dignity or state of mind.
In such cases, damages were
usually measured by the degree of mental distress.
Recovery in these cases was b ased on the concept
that when a person's photogra ph was used for purposes of selling a product a gainst his consent, it affront s
his humanity, and damages his dignity.
Unfortunately, granting relief based on these grounds, the courts
were still focusing on Warren's and Brandeis' concept of the "right to be left alone."
whenever high profile individuals sought recovery for unauthorized use of their pictures i n advertising,
courts were less likely to award damages. The courts ' rationale for refusing to apply the right of privacy to
celebrity figures i n these situations was t he notion that celebrities should not be able to recover damages
for being thrust into the limelight when they have become celebrities p recisely because they have sought
such attention and profited from it.
In contrast to the right of privacy, the right to publicity focuses on the right of an individual to reap
the economic r eward of his or her endeavors and has little to do with protection o f feelings or
It is recognized that public figures exploit a commercial market and, as such, are more
C.B.C. Distribution & Mktg., Inc. v. MLB Advanced Media, L.P., 443 F. Supp. 2d 1077, 1084 (E.D. Mo. 2006).
Entertainment Law Chicago, State Right to Publicity Laws,
http://www.entertainmentlawchicago.com/bizlaw/State%20Right%20to%20Publicity%20Laws.pdf (last visited
March 15, 2012).
McCarthy, supra note 3, at 1:7.
Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890).
Martin P. Hoffman, Trademarks, Copyrights, and Unfair competition for the General Practitioner and the
Corporate Counsel" The Rights of Publicity and Privacy, SC68 A.L.I.- A.B.A. 217, 219 (1998).
Warren & Brandeis, supra note 8, at 197, 219.
4. J. THOMAS McCARTHY, McCARTHY ON TRADEMARKS & UNFAIR COMPETITION § 28:1, at 28-3
See id. § 28:3, at 28-4 to 28-5.
Id. § 28.3, at 28-5.
Id., § 28:4, at 28-5 ("[W]hen a plaintiff whose identity was already well known sued under [a right of privacy
theory], judges were unable to see how there could be 'indignity' or 'mental distress' to a plaintiff whose identity was
already in widespread circulation in the news media.")
See Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 5 73 (1977) (noting that the State’s interest in
permitting a right of publicity is in protecting the proprietary interest of the individual).