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Checklist and Commentary on Defenses for Right of Publicity Claims

By Schuyler M. Moore
April 01, 2016

How courts are determining the parameters of an enforceable right of publicity is a highly active area of entertainment law. There should be a uniform set of defenses to a right of publicity claim. But under existing case law, the right of publicity is schizophrenic; some courts let the cause of action overflow its intended banks, swamping all that lies before it, including the First Amendment, while other courts neuter the action into non-existence.

The simplest way to conceptualize the right of publicity is to assume that, putting aside the defenses discussed below, there is a prima facie case any time anybody uses anyone's name, likeness or voice (or imitation thereof) for any reason. Note the breadth of the action: Anyone can be a plaintiff, not just celebrities. Also, the right applies to any use, not just a commercial use. It does not even require the use of the plaintiff's actual name, likeness or voice (referred to here as “persona”); liability can be based on use of the plaintiff's nickname or a “look-alike” or voice imitation.

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