What Good Is Fame If You Can't Be Famous in Your Own Right? Publicity Right Woes of the Almost Famous

By Farr, Porsche | Marquette Intellectual Property Law Review, Summer 2012 | Go to article overview

What Good Is Fame If You Can't Be Famous in Your Own Right? Publicity Right Woes of the Almost Famous


Farr, Porsche, Marquette Intellectual Property Law Review


  I. INTRODUCTION                                            467  II. THE LAW OF RIGHT OF PUBLICITY                           468      A. Right to be Let Alone                                469      B. Distinguishing Publicity from Privacy                470      C. Right of Publicity in the Light of Public Policy     471 III. STATUTORY PROTECTION OF PUBLICITY RIGHTS                474  IV. SIGNING THEIR LIVES AWAY                                475      A. The NCAA Swindle                                     475      B. The Reality Is ... the T.V. Networks Own You       478   V. POTENTIAL FOR STATUTORY INTERVENTION                    480      A. Proposed Statute                                     481  VI. CONCLUSION                                              481 

I. INTRODUCTION

Television programming changed drastically over the last few years. Reality television erupted on every major network, while the popularity of sitcoms and other daytime television shows diminished. (1) College sports games now share the spotlight with professional sports games, and may be more appealing to some sports fans. (2) Reality television stars and amateur athletes (hereafter referred to as "Emerging Celebrities") play a large role in the billions-of-dollars generated from television airplay each year. (3) Unfortunately, industry standard contracts force these Emerging Celebrities to give up significant control of their image, which leads to the loss of potential income. Current law forces Emerging Celebrities to attribute these major losses to the cost of fame, often because they knowingly signed and entered into agreements that expressly forfeited certain rights to their persona. (4)

If this major gap in American contract law and mainstream entertainment continues to exist, Emerging Celebrities will continue to forfeit millions-of-dollars of potential income. This Comment will discuss the potential legal injustice of standard contracts used in the reality television and amateur sports industries, and propose a potential statutory solution. Part II will discuss the history and development of publicity rights in the United States. Next, Part III will briefly discuss the various statutes currently in effect to protect publicity rights. Then, Part IV will discuss how current industry standard contracts force Emerging Celebrities to forfeit a substantial and valuable portion of their publicity rights. Finally, Part V will discuss a proposed statute that would prohibit enforcement of publicity rights clauses that force Emerging Celebrities to assign excessive portions of a their publicity rights to another person or entity.

II. The Law of Right of Publicity

Modern right of publicity law consists of a dichotomy of privacy law and property law. (5) The right to privacy is grounded in the belief that individuals reserve the right to be free from having their image ruined by "idle gossip" or negative statements published in the press. (6) The economic basis for the right of publicity recognizes an individual's right to own a property-type interest in his or her marketable image, which includes his or her name, picture, likeness, voice, and other personal characteristics. (7) Modern legal trends led to various state statutes and cases that give this area of law more defined standards. (8)

A. Right to be Let Alone (9)

Legal Scholars first discussed the right of publicity in the nineteenth-century under the guise of the right of privacy. The invention of the printing press and flash photography brought about issues of men wishing "to be let alone" in their private lives. (10) In the late 1800s, legal scholars Samuel Warren and Louis Brandeis noted that the unauthorized circulation of private photographs along with gossip was becoming a trade in the newspaper industry, and necessitated legal protection for an individual's privacy. (11) They asserted that the protections afforded to the intellectual property of every person are the same types of protections that each person should be afforded for his or her publicity. …

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