| The Right of Publicity: A Doctrine Gone Wild?
The recent dispute involving Lindsay Lohan and ETrade (see AP report on YouTube) provides an opportunity for critically examining the right of publicity. The right of publicity is one of the newest intellectual property rights available under U.S. law. It allows a celebrity, such as Ms. Lohan, to control the commercial use of her name and/or likeness. This right is a distinct right that exists in addition to unfair competition and trademark rights.
Existing unfair competition law allows a celebrity to object to use of her name and/or likeness in a commercial context if the use is likely to confuse members of the intended market such that they believed the celebrity was endorsing the product. (See, e.g., 15 U.S.C. sec. 1125(a)). Additionally, a celebrity may be able to assert trademark rights in her name. But a trademark infringement action would also require demonstrating a likelihood of confusion among consumers. The right of publicity provides an additional right which enables a celebrity to object to use of her name and/or likeness even if no confusion exists among consumers.