Wednesday, March 17, 2010

Social Media and The Right To Publicity

The Right To Publicity enables a person to profit off of his or her name or likeness. This right varies from state to state and may be extremely valuable for entertainers and professional athletes who have a marketable name or likeness. This right was first recognized by the U.S. Courts in 1953 in Halean v. Topps 202 F.2d 866. Here, a baseball card company sued a competitor alleging that it owned an exclusive right to photograph and to publicize ballplayers they had under contract and that a competitor did not have the right to utilize a player's likeness in their trading card set while the player was still under contract with the plaintiff.

The Halean Court stated, "that, in addition to and independent of that right of privacy, a man has a right in the publicity value of his photograph, i. e., the right to grant the exclusive privilege of publishing his picture, and that such a grant may validly be made 'in gross,' i. e., without an accompanying transfer of a business or of anything else. Whether it be labelled a 'property' right is immaterial; for here, as often elsewhere, the tag 'property' simply symbolizes the fact that courts enforce a claim which has pecuniary worth. This right might be called a 'right of publicity.' For it is common knowledge that many prominent persons (especially actors and ball-players), far from having their feelings bruised through public exposure of their likenesses, would feel sorely deprived if they no longer received money for authorizing advertisements, popularizing their countenances, displayed in newspapers, magazines, busses, trains and subways. This right of publicity would usually yield them no money unless it could be made the subject of an exclusive grant which barred any other advertiser from using their pictures."

Entertainers, professional athletes, and celebutantes (those famous for being famous) have a love-hate relationship with the paparazzi. The paparazzi serve a much needed role because they help these people stay in the public's eye. According to the L.A. Times, some celebrities may have formal or informal relationships with members of the paparazzi which feed the publicity machine that is so important to an entertainer's career. Celebrities sell the rights to their images for staggering sums. For example, according to the Today Show, Brad Pitt and Angelina Jolie sold photos of their newborn twins to People and Hello magazines for $14 million dollars. Pitt and Jolie had previously sold images of their daughter Shiloh to Getty Images for a donation and to People and Hello Magazine for $4 million dollars.

The bottom line is that social media may create new revenue opportunities that if properly utilized has the potential to become major income streams. Unfortunately, for most entertainers and professional athletes the window of opportunity to capitalize on these assets is short and unpredictable. Therefore, social media action plans must be created and implemented during the early stages of a celebrity's or athlete's career. To learn more about these issues you may contact me at

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