The right of publicity makes it unlawful to use another's identity for commercial advantage without permission. In recent years, that right has grown to encompass the potential misappropriation of voice, performance style, former names, and maybe, as contended in a case recently filed in Indiana regarding the race horse Cigar, . . . the image of an animal. (What would "Talking Mr. Ed" say?)

The law has developed in tandem with the growth of the commercial value of the fame (sometimes notoriety) and identity of celebrities. However, critics would argue that the right of publicity has expanded to dimensions beyond the collective egos of those whose rights it protects, and that the common law can be so broadly applied that it threatens to do more harm to the First Amendment than good to individual celebrities. A popular target for such critics is the decision in White v. Samsung Electronics America, Inc., 971 F. 2d 1395 (9th Cir. 1992), cert. denied, 508 U.S. 951 (1993), which arguably extended the right of publicity to the evocation of a person's identity in any manner. (The Court found that a Samsung VCR advertisement which showed a set recognizable as that of the "Wheel of Fortune" show and a robot shaped like a female and dressed like the TV show hostess Vanna White infringed Ms. White's right of publicity.) Some argue that White goes too far and chills valuable speech by making it a tort to merely evoke a celebrity's image in the public's mind. Others maintain that the First Amendment is not endangered by right-of-publicity precedent and the reality is that the law has developed out of necessity. Further complicating the debate, there is now legitimate concern that the new media technologies make celebrities particularly vulnerable to the unauthorized exploitation of their identities.

History and Policy
The right of publicity has its origins in privacy doctrine. Courts gradually extended the privacy right "to be left alone" to the right of a celebrity to exploit the value of his or her persona. The first case to recognize explicitly the "right of publicity" was Haelan Laboratories Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866, 868 (2d Cir.), cert. denied, 346 U.S. 816 (1953). In what is now traditional right of publicity doctrine, the Court in Haelan recognized the value of and property right in a baseball player's photograph used on trading cards.

The decision in Haelan was fortified by subsequent commentaries. Professor Melville B. Nimmer argued that, although publicity and privacy claims sometimes overlapped, privacy plaintiffs were concerned with unwanted intrusion into their personal lives, while publicity plaintiffs properly complained of uncompensated exploitation of their identities. See Nimmer, The Right of Publicity, 19 Law & Contemp. Probs, 203 (1954). He was joined by Professor William L. Prosser, who recognized "appropriation for defendant's advantage of the plaintiff's name or likeness" as one of the four different torts constituting invasion of privacy. See Prosser, Privacy, 48 Cal. L. Rev. 383, 398-407 (1960). Following the opening of these flood gates, an onslaught of cases and statutory law regarding the right of publicity has emerged. Currently, under statutory and/or common law, the right of publicity is recognized in at least 25 states. In California, the right of publicity is protected both by statute for "name, voice, signature, photograph or likeness" (Civil Code § 3344) and, more generally, at common law. California, as well as some other states, also provides that the right of publicity is descendible for a period of 50 years after death (Civil Code § 990).

The policies supporting the growing doctrine originally included the theory that significant expenditure of time, effort, talent, and finances is necessary to become famous and that due to such investment, celebrities justifiably deserve any money flowing from their fame. The right of publicity, under this rationale, is a property right, somewhat akin to copyright. Today, courts are savvy enough to recognize that there are many avenues to develop celebrity value for profit, and that celebrities achieve fame from "rare ability, dumb luck or a combination thereof." White, 971 F.2d at 1399. Another theory, proffered by the only Supreme Court case addressing the right of publicity, is the notion that an incentive to the population to undertake socially enriching (and sometimes celebrity-creating) activities is promoted by ensuring that the celebrity who undertakes the activity reaps the financial reward. Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 575 (1977). This argument could not be more pertinent today when endorsements can be the most lucrative reward for celebrity status. For example, consider that Michael Jordan's $25 million salary from the Chicago Bulls is dwarfed by the $40 million it is estimated he will receive for endorsements, or that 20-year-old golf prodigy, Tiger Woods, who turned professional this month and earned $2,544 in the Greater Milwaukee Golf Open, has projected endorsement contracts valued at $43 million; and compare the economic value of gold medals to the coveted endorsements projected to be earned by recent Olympians. Also relevant, the unauthorized use of a celebrity's identity may saturate the market, thus injuring the celebrity by reducing the demand for his or her image. This argument has particular significance in light of the new technologies--CD-ROMS and the Internet--which provide limitless opportunities for increased saturation. Finally, but perhaps most important, the philosophy that every man and woman should have autonomy over what he or she endorses, be it an idea, a political candidate or a product, provides a compelling policy reason supporting the right of publicity. The opportunities to benefit from celebrity endorsement have exploded. Examples range from Elizabeth Taylor marketing her own signature perfumes, to Dionne Warwick espousing the benefits of the Psychic Friends Network, to Marie Osmond dolls and Connie Stevens cosmetics sold on television "shopping networks," to every kind of infomercial a-la-celebrity in between, to the growing number of celebrities whose voices now provide the unmistakable backdrop to innumerable television commercials. The flip side of the endorsement policy is the important right of a celebrity to choose, as some do, not to exploit his or her identity in commercial ventures. Jack Nicholson, among others, has sued to preserve that "non-exploitation" right. The right of publicity helps make this choice lawfully respected.

The Evolution of the Protected "Persona"
The right of publicity originated as a prohibition against misappropriating a person's "name or likeness." This idea of "name or likeness" has been stretched, most liberally under common law, to include, among other things, a look-alike, Allen v. National Video, Inc., 610 F. Supp. 612, 630 (S.D.N.Y. 1985) (granting Woody Allen's request for injunction preventing use of look-alike in a commercial); a nickname, Ali v. Playgirl, Inc., 447 F. Supp. 723, 728 (S.D.N.Y. 1978) (publication of drawing of nude black man labeled "The Greatest" entitled plaintiff to preliminary injunctive relief for violations of right-of-publicity); a phrase, Carson v. Here's Johnny Portable Toilets, Inc., 698 F. 2d 831, 837 (6th Cir. 1983) (use of the phrase "Here's Johnny" actionable under Michigan common law); a sound-alike-voice, Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988) and Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992), cert. denied, 506 U.S. 1080 (1993) (common law, but not statutory, cause of action applicable to appropriation of singer's voice in a commercial by voice impersonator); a unique and distinctively marked car, Motschenbacher v. R.J. Reynolds Tobacco Co., 498 F.2d 821 (9th Cir. 1974) (where defendant tobacco company used slightly modified footage of famous race car driver's car in a television commercial without permission, the driver's right of publicity was infringed); and a former name, Abdul-Jabbar v. General Motors Corp., 85 F. 3d 407 (9th Cir 1996) (allowing Kareem Abdul Jabbar to recover for use of his former name, Lew Alcindor, in a television commercial for General Motors).

As the case law illustrates, there are seemingly limitless endeavors to benefit from another's fame which are now provoking responses from the courts. A few currently pending disputes illustrate that it is difficult to anticipate the type of use (or lawsuit) that might arise next: CMG Worldwide, a company that manages the licensing rights to the champion thoroughbred racehorse Cigar, is suing an artist who sells lithographs and T-shirts which depict Cigar. Currently on appeal in California is a lawsuit brought by Fred Astaire's widow against Best Film & Video for using clips of Fred Astaire for an instructional dance video. Dennis Rodman has filed a complaint alleging, among other things, infringement of his right of publicity due to the production and distribution of long-sleeved jerseys bearing exact replicas of the actual tattoos located on his body. Actress Viola Harris is suing Sony Pictures Entertainment, Inc., and The Game Show Network for misappropriation and imitation of her distinctive (speaking, not singing) voice. In addition, musicians such as Santana and George Benson have attempted to protect their distinctive and well-known instrumental sound by filing right of publicity claims against defendants who imitate their "sound" for the purpose of evoking the identity of such musicians.

The Future
Looming in the immediate future is the new media technology. On-line and CD-ROM advertising and entertainment provide new markets in which to exploit the value of a celebrity's identity or persona for commercial gain. The concern that the temptation to appropriate celebrities' identities will be irresistible appears warranted. The use of live talent is increasingly popular, and the use of a celebrity's name or image adds value to CD-ROM games, branching games, and interactive movies (e.g., the popular real celebrity sports games such as John Madden's Football). Live persons are now used to create digital stunt doubles for impossible stunts. Computer generated imagery ("CGI") makes it possible, by digitally breaking down and reorganizing images by computer, to manipulate a person's image. For example, Sylvester Stallone's face was morphed onto a digital character for a flying motorcycle chase scene in the Judge Dredd interactive game set in the 22nd century, and the walk of an actress was used for a computerized Barbie in a CD-ROM game in which players design "Barbie's Wardrobe" by computer and then see her model it on the runway. A computer programmer can create a character with the face of Michelle Pfeiffer, the body of Pamela Sue Anderson Lee, and the voice of Barbra Streisand. In the era (now upon us) of "virtual advertising," electronic imaging techniques can place that image on television screens for the purpose of advertising widgets. The right of publicity certainly will assume greater importance as these types of uses become more prevalent.

Liberal interpretation of what constitutes appropriation of identity is a natural reaction to protect against the creative evocation of those who try to capitalize on the fame of another, rather than generate their own attention-getting identity (or pay for the right to use another's identity). The current trend of cases and, in particular, the White Court, realized this and criticized placing any limit on the number or type of factors that comprise identity in the common law right of publicity. "It is not important how the defendant has appropriated the plaintiff's identity . . . A rule which says the right of publicity can be infringed only through the use of nine different methods of appropriating identity merely challenges the clever advertising strategist to come up with the tenth." 971 F. 2d at 1398.

This holding has provoked scathing disapproval. The criticism is somewhat alarmist in that the deterioration of First Amendment rights often is the touted warning. See, e.g., Judge Kozinsky's dissent from denial of rehearing en banc at 989 F.2d 1512. However, the courts have demonstrated in the aftermath of White that the First Amendment is alive and well in the right-of-publicity law arena and that the two rights can be harmonized. Thus, in Montana v. San Jose Mercury News, Inc., 24 Cal. App. 4th 790 (1995), a California Court of Appeal denied football star Joe Montana's claim that a newspaper's use of his image, taken from its Super Bowl cover story and sold in poster form, violated his right of publicity, holding that the posters represented newsworthy events, and a newspaper has a constitutional right to promote itself by reproducing its news stories. In Cardtoons, LC v. Major League Baseball Player's Assoc'n., WL490707 (10th Cir. 1996), a federal court in Denver recently ruled that a Tulsa company could produce trading cards satirizing Major League players and their big-money contracts. In Page v. Something Weird Video, CV94 2327, District Judge Richard Paez found this month that Bettie Page's right of publicity was not infringed when the distributor of two of Ms. Page's films ("Teaserama" and "Varietease") advertised its films with a new drawing of her in high heels, garter belt, and leather bustier. The judge determined that the two films were protected by the First Amendment, and therefore the "incidental advertising is also protected." In Wendt v. Host International, Inc., CV-93-00142, the District Court, after viewing live three dimensional models of the characters, determined that the robotic figures installed at airport bars around the world did not infringe the plaintiffs' right of publicity in their characters Norm and Cliff from "Cheers" and granted summary judgment (a second time) to defendants Paramount Pictures and Host International.

Pushing the limits of the right of publicity has been made easier by the increasing value of that right intertwined with increased means of exploiting the right. The lesson taught by these cases is that the law must be malleable to sufficiently keep up with such creativity, but flexible so that it does not endanger the First Amendment.

Conclusion
The White opinion, making actionable the evocation of a celebrity's identity in any form, is not the perfect solution for right-of publicity law; however, it may deserve more credit than criticism in that it can be applied effectively to misappropriation in unprecedented forms. The time may be ripe for the Supreme Court to take a second look at this issue, considering over 40 years have passed since Haelan, and almost 20 years since its first and only pronouncement on the subject. Alternatively, the best solution ultimately may be a federal statute comparable to trademark and copyright law. Such a law (often discussed but not yet implemented) might be beneficial in that there is divergence on right-of-publicity issues in the numerous jurisdictions that recognize the right, e.g., what is and what is not protected, the differences under common law and statutory law, and whether the right is descendible and for how long. Moreover, with the new-media technologies, choice of law issues may become crucial as the exploitation of identity can occur easily and quickly at national levels in ambiguous jurisdictions (e.g., the Internet); a consensus on the law would promote certainty and reduce forum shopping. Of course, the federal statute would have to be drafted so that it is relevant in the face of technological advances and, at the same time, sensitive to free speech concerns. Although the right of publicity is a significant right, it must defer to the constitutionally protected right of freedom of speech. After all, it is the open market place, a forum created and sustained by the free exchange of speech and ideas, which creates the fertile ground from which so many celebrities emerge. It doesn't take a dog (or a horse) to know that it's not a good idea to bite the hand that feeds you.

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