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Downhill Ride for Right of Publicity

By Jonathan Moskin

The right of publicity ' the right of individuals to protect the commercial uses of their names and images ' is now a familiar concept. Given the recently reported $50 million purchase of rights to Muhammad Ali's name or the $100 million acquisition of Elvis Presley's publicity rights (hardly for a song), there can be no question that the right not only can have great value, but has achieved a certain settled status. And yet, the metes and bounds of the right remain elusive at best.

Although evolved from the personal right of privacy (the right to be left alone), the right in reality resembles most closely a personal trademark. Just as a trademark protects the public recognition and hence selling power of commercial names or symbols, the right of publicity protects the commercial value of (or good will in) a celebrity's name or image. And of course, most right of publicity actions are joined with claims under '43(a) of Lanham Act for use of false designations of origin. However, despite the clearly commercial nature of the right, and notwithstanding that courts routinely state that proof of injury in fact is a required element of the tort, the precedents offer little if any insight into what is or is not injurious to the commercial value of a celebrity's name or image.

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