Privacy as Property: News and the Right of Publicity (WP-02-43)
Craig L. LaMayThe right of publicity, one of Dean Prosser’s original four privacy torts, has more in common with intellectual property law than traditional notions of privacy, providing a cause of action for the nonconsensual appropriation of a person’s name or likeness for commercial purposes. The law gives media organizations a defense for the use of such material that is newsworthy, but in recent years some notable suits have raised the questions of what constitutes a “news” use and what uses of a person’s “identity” are actionable. Some plaintiffs have used the tort to seek damages they could not win under defamation or other privacy torts, while others have used it to seek to control forms of expression, such as parody, that would be protected under intellectual property law. As news organizations become smaller parts of large entertainment conglomerates, the right of publicity may take on new significance for journalists who once thought the tort a concern only of advertisers.