A Critical Examination of New York's Right of Publicity Claim

By Mulrooney, Tara B. | St. John's Law Review, Fall 2000 | Go to article overview

A Critical Examination of New York's Right of Publicity Claim


Mulrooney, Tara B., St. John's Law Review


The rapid proliferation of the news and media industries, the ascent of tabloid journalism, and the increasing use of celebrities in advertising campaigns have brought intellectual property concerns to the forefront of legal debate. The right of publicity claim, which concerns an individual's right to commercially control his or her image,1 is one such issue receiving increased attention. Having recently gained recognition as an independent claim in the latter half of this century, the substance and shape of publicity rights have yet to be clearly settled and vary greatly among jurisdictions. In an attempt to codify the concepts of the right of publicity claim, some states have established various, and often inconsistent, standards as to the scope and nature of this right. Other jurisdictions have continued to rely solely on common law publicity rights.2 Within this legal framework, this Note will analyze New York's publicity rights claim,3 which is incorporated within its right to privacy statute. Taking into account the patchwork of various state laws, in addition to legal commentary on the subject, this Note maintains that New York should establish a separate and distinct property-based right of publicity claim.

To better understand the nature of this newly recognized cause of action; this Note will first provide a general overview of

the right of publicity claim. It will define the term "right of publicity" and examine the origins and justifications for its recognition and development. In addition, it will describe the development of the claim and set forth the current state of the law. Second, this Note will specifically examine the right of publicity claim as it currently exists in New York. It will follow New York case law on the issue and provide an in-depth examination of sections 50 and 51 of the New York Civil Rights Law,4 the privacy statute in which publicity rights are incorporated. Third, this Note will reveal the shortcomings of sections 50 and 51 of the New York Civil Rights Law. In so doing, the New York claim will be compared to California's more broadly defined property based publicity claim,5 thus highlighting the numerous advantages of the California statute. Fourth, this Note will address the constitutional limitations on a person's right of publicity and will propose that such limitations serve to address many of the concerns often raised by those opposed to enacting a more broadly defined right of publicity claim in New York. Finally, this Note will conclude that the establishment of a separate property-based claim would better represent the ideals encompassed within the right of publicity cause of action-namely, to provide individuals with more adequate protection and increase predictability in the law.6 The bill to amend the New York Civil Rights Law by adding a new Article 5-b, which was proposed by Senator Emmanuel Gold in 1995,7 will be set forth as a model of a statutorily-defined property based right that should be adopted by the New York legislature.

"An entire industry has developed around the merchandising and commercial exploitation of endorsements which often surpass the movies earned directly through

performance by entertainers and sports stars."8 In light of this current explosion in the intermingling of the media, entertainment, and advertising industries, it is imperative that an individual's right to protect and capitalize upon their own image is safeguarded, as image is the celebrity's most expressive and valuable resource. Thus, now more than ever, it is vital that New York clarify and broaden an individual's right of publicity claim to ensure that individuals gain adequate protection for their most precious and intimate commodity-their identities. A separate and distinct property-based right of publicity would fulfill that goal.

1. THE RIGHT OF PUBLICITY: A GENERAL OVERVIEW

"The right of publicity is . . . the inherent right of every human being to control the commercial use of his or her identity. …

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