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Expansion of Right of Publicity Continues To Create Tensions with First Amendment

By William Sloan Coats and Jennifer P. Gossain

Broadly defined, the right of publicity is a person's right to control the commercial use of his or her identity. It has been over half a century since the term “right of publicity” was first coined by Judge Jerome Frank in 1953. (See, Haelan Laboratories v. Topps Chewing Gum, 202 F.2d 866 (2d Cir. 1953).) Since that time, courts have been struggling to define the scope of the right of publicity protection, and to resolve the inherent conflicts between the right of publicity and the freedom of expression embodied in the First Amendment.

Recently, two incidents involving one of the world's most famous couples, President Barack Obama and First Lady Michelle Obama, once again brought the focus onto right of publicity issues, as well as potential First Amendment defenses to right of publicity claims.

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