Shake-Down: How Professional and College Athletes ? Right of Publicity are becoming an Endangered Species

Author:Edward Elliot
Position:Johnson & Martin, PA, Fort Lauderdale, FL
Pages:254-273
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Edward Elliot
Johnson & Martin, PA
Fort Lauderdale, FL
elliot.edward@gmail.com
Abstract.This article compares the right of publicity of celebrities with that of
professional and c ollege athletes. Sec.I of this article introduces and defines the concept of
right of publicity. Sec.2 begins with a brief background on the history of the right of
publicity and its intersection with the First Amendment. Sec. 3 traces the evolution of the
right of publicity as it pertains to professional athletes, collegiate athletes and non-athlete
celebrities. Sec. 4 illustrates what the present state of the right of publicity jurisprudence is
regarding professional athletes, collegiate at hletes and non-athlete celebrities. It proceeds to
frame the legal issue of whether there are any discrepancies in the application of the right of
publicity as to p rofessional and collegiate athletes compared with that of non-athlet e
celebrities. To analyze this issue, the paper focuses on an in-dep th analysis of the evolution
of the right of p ublicity but more importantly the present state of the right of publicity as
applied to the aforementioned three discussed classes. Finally, Sec. 5 concludes that it
appears that non-athlete celebrities do enjoy a favorable interpretation of this tort claim
compared to professional athletes with collegiate athletes faring the worst.
1. Introduction
Americans have a long standing love affair with sports and celebrities and their ardor sho ws no sign of
cooling off! This is illustrated by t he astronomical figure of $5,826 ,336,663,000, which represents the
amount US consumers spent in 2010 on items such as food, housing, clothing and tra nsportation, all of
which use in-one-shape-or-form celebrity endorsers to promote their products.
1
Since the late 1930s,
when Red Rock Cola hired baseball great Babe Ruth to endorse its soft drink br and, companies around
the world have used athletes and celebrities to promote their p roducts.
2
Companies utilize celebrity
endorsements to communicate their brands to particular seg ments of customers. In our culture, fame is
used effectively to persuade, inspire, and i nform the pub lic in almost every aspect of our lives. Thus, for
celebrities and athletes, fame has an inherent economic value, which they endeavor to enhance and
protect through the relatively recent legal doctrine of the right of publicity. Bro adly defined, the right of
publicity is the “inherent right of every human being to control the commercial use of his or her
identity.”
3
Celebrities invoke this right to prevent the unauthorized commercial use of their names,
likenesses, or other aspects of their identities in order to pro tect and control their valuable personas.
4
This paper begins with a brief background on the history of the right of publicity and its intersectio n
with the First Amendment. It then traces the evolution of this right of publicity as it pertains to
professional athletes, collegiate athletes and non-athlete celebrities. Furthermore, it illus trates what the
present state of the r ight of publicity jurisprudence is regarding professional athletes, collegiate athletes
and non-athlete celebrities. It proceeds to frame the legal issue of whether there are any discrepancies in
the application of the right of publicity as to professional and collegiate athletes compared with that of
non-athlete celebrities. To analyze this i ssue, the paper focuses on an in-depth analysis of the evolutio n of
1
United States Department of Labor, Bureau of Labor Statistics, http://www.bls.gov/news.release/cesan.nr0.htm
(last visited March 13, 2012).
2
Red Rock Cola, Coke Girl, http://www.angelfire.com/tn/traderz/redrock.html (last visited March 14,2012).
3
J. Thomas McCarthy, The Rights of Publicity and Privacy § 1:3 (2d ed. 2006).
4
See Restatement (Third) of Unfair Competition § 46 (1995).
How Professional and College Athletes ‘ Right of Publicity are b ecoming an
Endangered
Species
255
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,
5
and
thus, protections vary from state to state in the thirt y states that currently recognize this right.
6
The right
of publicity was born out of the right of p rivacy.
7
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.
8
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
public."
9
The article further suggested that the law should protect people's feelings from public intrusion,
and not just protect individuals from physical harm.
10
"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."
11
A split of authority
soon developed regarding the applicability of the right of privacy in such ca ses.
12
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.
13
In such cases, damages were
usually measured by the degree of mental distress.
14
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.
15
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."
16
Consequently,
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.
17
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
reputation.
18
It is recognized that public figures exploit a commercial market and, as such, are more
5
C.B.C. Distribution & Mktg., Inc. v. MLB Advanced Media, L.P., 443 F. Supp. 2d 1077, 1084 (E.D. Mo. 2006).
6
Entertainment Law Chicago, State Right to Publicity Laws,
http://www.entertainmentlawchicago.com/bizlaw/State%20Right%20to%20Publicity%20Laws.pdf (last visited
March 15, 2012).
7
McCarthy, supra note 3, at 1:7.
8
Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890).
9
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).
10
Warren & Brandeis, supra note 8, at 197, 219.
11
4. J. THOMAS McCARTHY, McCARTHY ON TRADEMARKS & UNFAIR COMPETITION § 28:1, at 28-3
(1996).
12
See id.
13
See id.
14
See id.
15
See id. § 28:3, at 28-4 to 28-5.
16
Id. § 28.3, at 28-5.
17
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.")
18
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).

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