Academic journal article Journal of Law, Technology and the Internet

A Comparative Analysis of California's Right of Publicity and the United Kingdom's Approach to the Protection of Celebrities: Where Are They Better Protected?

Academic journal article Journal of Law, Technology and the Internet

A Comparative Analysis of California's Right of Publicity and the United Kingdom's Approach to the Protection of Celebrities: Where Are They Better Protected?

Article excerpt

Table of Contents  I. INTRODUCTION II. HISTORY OF THE RIGHT OF PUBLICITY IN THE UNITED STATES    A. Origins: Right of Privacy    B. Technological Advances and the Recognition of Commercial     Exploitation    C. Prosser and Birth of the Right of Publicity III. MODERN RIGHTS IN CALIFORNIA:    A. Introduction    B. Common Law Right of Publicity    C. Civil Code [section] 3344:    D. Expansion of Common Law Protection and Civil Code     [section]3344.1    E. The Right of Publicity as Property: Goldman v. Simpson IV. United Kingdom    A. Introduction    B. Intellectual Property Causes of Action       1. Copyright, Designs and Patents Act of 1988       2. Trade Marks Act       3. Passing Off    C. Industry Specific Regulatory Codes       1. The Advertising Codes       2. The Press Complaints Commission    D. Human Rights Act V. WHERE ARE CELEBRITIES BETTER PROTECTED VI. CONCLUSION 

I. INTRODUCTION

For almost a century, society has grown increasingly obsessed with celebrities and what they portray. Celebrities are idolized for attaining a status very few can attain. Society's treatment of celebrities signals to the world that somehow these individuals are fundamentally different. Celebrity work entails acting, playing sports, and often posing for the camera. Celebrities live glamorously, arrive on red carpets, and attend exclusive events. Celebrities receive generous if not outlandish salaries. The public clings onto every item of clothing, outing, relationship, television show, endorsement, and newly released movie in which our favorite celebrities appear. It is no wonder that the most famous celebrities are usually the highest paid, and whose private lives suffer the most exploitation.

Celebrities are extremely vulnerable to exploitation because their earning potential is based in large part on the value of their image. The image celebrities attain is essentially their appearance, the talent associated with their appearance, and the marketability that results. Celebrities are entitled to the market value their image generates, (1) and to sufficient protection from those who attempt to exploit their celebrity status for their own economic purposes. For example, Michael Jordan has profited from the creation of "Air Jordan" sneakers. Many believe that by purchasing these sneakers, they too can excel in basketball. Jordan has commercialized his ability to play a certain sport. He has projected this ability onto an eponymous line of sneakers. Celebrities such as Jordan seek legal protection because they are continually subject to third parties' intrusive attempts to profit off of their image. (2)

Under the right of publicity, courts award compensation for the commercial exploitation of celebrities' name or likenesses. (3) The right of publicity is an intellectual property right that ensures individuals' right to control the commercial use of his or her identity. (4) Celebrities may rely on either the statutory or common law right of publicity to recover from those who wrongfully profit from their image. (5) The following example will illustrate the need for the right of publicity to protect not only celebrities' names and likenesses, but their images and voices as well.

suppose that the late Michael Jackson appeared in an animated movie, wearing his signature red jacket and white glove. (6) Each participating actor signed a contract allowing the movie studio exclusive use of his image on clothing in connection with the movie's promotion. Now suppose a photographer took pictures of Jackson, screened them onto t-shirts, and sold the shirts to moviegoers on the day of the premiere. The photographer commercially benefits from the wrongful sale of Jackson's image. If Jackson's estate sought recovery under the right of publicity, it would have to establish that the photographer's commercial use of Jackson's name or likeness caused him injury. (7) Retailers and consumers attach the highest value to goods that are not widely distributed. …

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