Academic journal article The University of Memphis Law Review

Use It (Every Two Years), or Lose It (Forever)-Tennessee's Personal Rights Protection Act and the Post-Mortem Right of Publicity

Academic journal article The University of Memphis Law Review

Use It (Every Two Years), or Lose It (Forever)-Tennessee's Personal Rights Protection Act and the Post-Mortem Right of Publicity

Article excerpt

I. INTRODUCTION

In 1984, the Tennessee Legislature enacted the Personal Rights Protection Act,1 thereby codifying the right of publicity in Tennessee.2 The right of publicity is the exclusive dominion and control over a person's name, likeness, image, or any attribute indicative of that person's identity.3 This control includes the right of the celebrity to profit from any value that his or her identity may possess.4 While this exclusive right surely continues throughout the life of the celebrity, it is less certain whether this right should extend to the heirs of the celebrity so as to prevent others from profiting after the celebrity's death.6 Critics of this point of view argue, however, that this right was intended to last only as long as the celebrity was alive or as long as the celebrity could exploit it personally.7

Accressing this question, the Tennessee Legislature added a term of descendibility to its right of publicity that extends after a celebrity's death for ten years.8 The right of publicity is further extended in perpetuity unless one's heirs have not exploited the right for a period of two years,9 beginning after the ten years immediately following the individual's death.10 This enactment codified the Tennessee judiciary's view that the right to publicity is a property right,11 and not a privacy right.12 However, there has been very little court interpretation regarding how this right terminates or how a decedent's heirs may retain a right of publicity forever.

This note will set out Tennessee's right of publicity under both its common law origins and its statutory codification in 1984, and it will analyze the extent to which one's heirs or assigns can control a person's right to publicity.13 This note will also compare Tennessee's Personal Rights Protection Act of 1984 with the rights of publicity in sister jurisdictions, including those with only a common law right over the commercial use of one's name, image, or likeness.14 Finally, this note will criticize Tennessee's statutory limitation on the right of publicity past one's death, arguing that a failure to exhibit that right over a two-year period does not necessarily reflect a publicity right with no value.15 Through an analysis of the policy concerns of the Tennessee Legislature and the judiciary, this note's conclusion will propose that a thirty-year absolute right, combined with a five-year showing of non-use, furthers the same policies while fairly respecting the rights of the celebrity's heirs.16

II. A BRIEF HISTORY OF THE RIGHT OF PUBLICY

The right of publicity can be traced to the developing definition of privacy in the late-nineteenth century, as developed by Samuel Warren and Louis Brandeis.17 Warren and Brandeis identified the right to privacy as "the right to be let alone."18 Encompassed in this right was a freedom from media intrusion into private affairs.19 Warren and Brandeis also believed that exploitation of a person's image for commercial purposes was a prime example of this media intrusion.20 Therefore, the unauthorized commercial use of a person's name, image, or any recognizable personal attribute would violate that person's right to be let alone.21

Perhaps furthering the Warren and Brandeis association of unauthorized exploitation to an invastion of privacy,22 Dean Prosser included wrongful appropriation in his definition of an invasion of privacy. …

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