Take My Likeness, Please: Threats to the Right of Publicity in Light of State Farm Mutual Automobile Insurance Co. v. Campbell – Note by Hillel Michael Elkins

From Volume 78, Number 5 (July 2005)

Celebrities were recently deprived of a valuable asset. This time, however, the perpetrator was not an Internet hacker, a supermarket tabloid, or an unscrupulous business manager. It was the United States Supreme Court. Although State Farm Mutual Automobile Insurance Co. v. Campbell concerns the constitutionality of punitive damages, it may have the unintended effect of limiting celebrities’ nationwide rights of publicity.

The right of publicity affords an individual an interest in the use of that individual’s name, likeness, photograph, voice, and other personal characteristics in connection with commercial exploitation and the marketing of goods and services. It is the “inherent right of every human being to control the commercial use of his or her identity… and recover in court damages and the commercial value of an unpermitted taking.” Although this body of law has its roots in privacy rights, such as those concerning public disclosure of embarrassing facts, the right of publicity is an explicit recognition of the commercial injury caused by the use of a person’s identity.

As of early 2003, eighteen states recognized common law rights of publicity and seventeen states had statutory provisions. While there is some overlap, as some states recognize both statutory and common law rights of publicity, twenty-two states do not recognize any such right at all.



Talent Agents, Personal Managers, and Their Conflicts in the New Hollywood – Note by David Zelenski

From Volume 76, Number 4 (May 2003)

Hollywood is an impersonal, uncaring, and unforgiving place, and artists need the sophisticated assistance of third parties to help them locate employment opportunities and to assist them in making career decisions. This is where talent agents and personal managers step in. Agents and managers represent artists, and their collective role in the entertainment industry is straightforward. According to agent Joel Dean, they “try to put [artists and producers] together to make a match . . . . It couldn’t be simpler.”

To be more specific, agents procure employment for talent. Their job is to get the artists they represent as much work as possible. Managers, on the other hand, shape artists’ careers. Their job is to serve their clients in an advisory capacity and to counsel them on the career options that have been made available to them through their agents. When looked at this way, things seem very black-and-white: Agents present artists with employment opportunities, and managers suggest which of those opportunities artists should accept.