What Is Right of Publicity and How Is It Used?

As a startup founder, influencer, athlete, or content creator, your name, image, voice, or even distinctive style can become valuable assets. You've probably heard about celebrities suing over unauthorized uses of their likeness in ads, products, or AI-generated content. That's often tied to the right of publicity.

Many entrepreneurs and creators ask: What exactly is the right of publicity? How does it differ from privacy or trademark rights? And how is it actually used in real life?

In simple terms, the right of publicity is a legal right that lets individuals control and profit from the commercial use of their identity — including their name, likeness, voice, signature, photograph, nickname, or other recognizable aspects of their persona. It's essentially a property right that prevents others from exploiting your personal identity for commercial gain without permission.

Unlike federal trademarks or copyrights, there's no nationwide federal law for the right of publicity in the US. It's handled at the state level through statutes or common law (judge-made decisions). About half the states have specific statutes, while others recognize it through case law. This creates variations: some states protect only living people, others extend protection after death (post-mortem rights, sometimes for decades), and rules differ on inheritance, duration, and what exactly counts as "identity."

The right evolved from privacy law but focuses on economic value rather than emotional harm. It was first clearly distinguished in the 1953 case Haelan Laboratories v. Topps Chewing Gum, where a court recognized a baseball player's property interest in his image on trading cards.

Key Differences from Related Rights

How the Right of Publicity Is Used in Practice

Individuals (or their estates) use this right to stop or get compensation for unauthorized commercial uses. Common scenarios include:

• Endorsement or advertising — A company uses your photo, name, or voice to sell products implying you endorse them. Example: Bette Midler won against Ford for using a sound-alike singer in a car ad after she refused; Tom Waits similarly succeeded against Frito-Lay.
• Merchandise and products — Selling t-shirts, posters, or items featuring your likeness without permission. Example: Vanna White won damages when Samsung used a robot resembling her turning letters in an ad.
• Impersonation or evocation — Using look-alikes, sound-alikes, or elements that clearly evoke you. Example: Johnny Carson won against a portable toilet company using "Here's Johnny" as a slogan.
• Post-mortem uses — Estates protect deceased celebrities' identities. Example: Estates of Marilyn Monroe, Elvis Presley, or Michael Jackson have litigated over unauthorized uses in merchandise or ads.
• Emerging issues like AI — Deepfakes, voice synthesis, or AI-generated images that mimic someone's persona for commercial purposes (e.g., Scarlett Johansson's concerns with voice AI resembling hers).

To enforce it, the person (or heir/agent) typically sues for misappropriation, seeking injunctions to stop the use, actual damages (lost licensing fees), the infringer's profits, or punitive damages in egregious cases.

Defenses and Limits

Not every use violates the right — First Amendment protections often apply:

• News, commentary, criticism, or parody (e.g., biographical films or satirical art).
• Transformative works (adding new meaning or creativity, like in some celebrity portraits).
• Incidental or newsworthy uses without commercial exploitation.

Bottom Line for Entrepreneurs and Creators

The right of publicity protects the commercial value of your personal brand — especially if you're building a public persona through social media, content, or endorsements. It's particularly relevant for influencers, athletes (with NIL deals), actors, musicians, or anyone whose identity has market value.

If someone uses your likeness commercially without permission, you may have a claim (check your state's laws). If you're using others' identities (e.g., in marketing, apps, or AI tools), get clear consent or legal clearance to avoid lawsuits.

State variations make this tricky — California and New York see the most cases due to celebrity density, but rules differ everywhere. For personalized advice on licensing, disputes, or emerging AI risks, consult an IP attorney familiar with your state's publicity laws. Safeguarding (or respecting) these rights can protect your brand's value and prevent expensive surprises as you grow.