Personality Rights

At its core, this intricate legal web of personality rights is generally understood to be woven from two distinct, yet frequently intertwined, strands. The first, and arguably the more overtly capitalist, is the right of publicity. This grants an individual the power to shield their image and likeness from being commercially exploited without their explicit, usually contractually compensated, permission. One might observe its striking resemblance, though certainly not identity, to the protective umbrella of a trademark—a legal mechanism designed to prevent confusion and maintain brand integrity. In essence, it’s the right to not have your face plastered on a product without getting a cut, or at least a polite inquiry.

The second strand is the perennial favorite of introverts and those with secrets: the right to privacy. This is the more fundamental, almost existential, right to simply be left alone, to exist without one's personality being thrust into the public eye without consent. In jurisdictions adhering to common law, the sphere of publicity rights frequently intersects with the venerable tort of passing off. This legal action is typically employed to prevent one party from misrepresenting their goods or services as those of another, often by implying an endorsement or association that simply does not exist. It's about preventing someone from riding on your coattails, especially if those coattails are famous.

When one delves into the theoretical underpinnings of publicity rights, particularly within the labyrinthine legal landscape of the United States, two primary philosophical camps emerge, each with its own justifications and inherent flaws. On one side, we have the more consequential or utilitarian-based theory. This perspective, ever so practical, posits that by granting creators—in this context, individuals who possess a marketable identity—rights over their "object," meaning their personality, an economic incentive is created. The grand assumption here is that this incentive will, in turn, spur the creation of more "goods," which is a rather clinical way to refer to cultural output, entertainment, or even just public personas. It's the belief that if you can profit from being you, you'll be more you, for profit.

Conversely, the moral-based deontological approach offers a rather different, and arguably more romantic, rationale. A frequently cited policy justification for this doctrine harks back to the notion of natural rights, drawing heavily from Lockean theory of property. The core tenet is that every individual inherently possesses a right to control how their right of publicity is, or is not, commercialized by a third party. This isn't about fostering economic activity; it's about fundamental autonomy and self-ownership. Often, though certainly not universally, the driving force behind such commercialization is to bolster sales or heighten the visibility of a product or service. This usually falls under the umbrella of commercial speech, a category that, with a rather dismissive wave of the judicial hand, typically receives the lowest level of judicial scrutiny. Because, apparently, the truth in advertising is less sacred than, say, political dissent.

Civil law and common law jurisdictions

Observe the global tapestry of legal systems, a stark division painted in hues of blue for civil law and red for common law. In a rather striking contrast to their common law counterparts, the majority of civil law jurisdictions have woven specific provisions directly into their civil codes. These provisions serve as robust guardians, protecting an individual's image, personal data, and a broader spectrum of generally private information. It's a more holistic approach to personal autonomy, treating these elements as inherent aspects of one's being rather than just marketable commodities.

However, even these broad, sweeping privacy rights are not without their pragmatic exceptions. These exceptions are typically carved out when the subject matter involves news reporting or the public figures who, by virtue of their chosen path, have arguably ceded a degree of their privacy to the collective gaze. Thus, while it would be an egregious violation of an ordinary citizen's privacy to publicly dissect their medical records, the media is generally afforded greater latitude to report on more intimate details concerning the lives of celebrities and politicians. One might, with a weary sigh, conclude that the public's right to know about a politician's questionable taste in décor somehow outweighs their right to medical confidentiality.

A significant divergence between these two legal traditions lies in the inheritable nature of personality rights. Unlike the often-ephemeral nature of such rights in many common law jurisdictions, civil law systems generally deem personality rights to be inheritable. This means that one's heirs can, theoretically, pursue a claim against an individual who invades the privacy of a deceased relative, particularly if such publication "besmirches" the memory or character of the departed. The idea that one's reputation can be legally defiled from beyond the grave is, I suppose, a testament to the enduring human need for posthumous control.

Currently, particularly within the United States, there is a rather spirited and ongoing debate concerning the alienability or transferability of these rights. The spirit of this discussion aims to impose limitations on the currently unfettered transfer of personality rights, moving towards a more protective system. The goal is to prevent what some perceive as "improper access" to a right so intimately rooted in an individual's very personality, particularly from a "wrongdoer." One might wonder if the legal system is finally realizing that treating a person's identity like a fungible asset might have some unforeseen, and frankly, rather obvious, drawbacks.

Historically, personality rights have emerged from the rather fertile ground of common law concepts, drawing sustenance from principles of property, trespass, and intentional tort. Consequently, these rights are, by and large, the product of judicial pronouncements—"judge-made law," as the phrase goes. Yet, this isn't universally true; there are jurisdictions where specific facets of personality rights have been codified into statute, providing a more explicit legislative foundation. In the United States, for instance, a veritable patchwork quilt of laws exists, with all 50 states each devising its own distinct methods for defining and enforcing the right of publicity. This creates a rather predictable lack of uniformity across the country, as each system operates under its own unique rules, frustrating any hope of a "roughly parallel" legal landscape. A legal Tower of Babel, if you will, but for faces and names.

In certain jurisdictions, the fine lines between publicity rights and privacy rights blur into an indistinguishable smudge, with the term "publicity right" often serving as a catch-all. In such instances, the crux of a publicity rights case often hinges on a single, pivotal question: would a significant segment of the public be erroneously led to believe that a commercial arrangement had been struck between a plaintiff and a defendant? Specifically, would they conclude that the plaintiff had assented to the advertising, which prominently features the image or reputation of a famous individual? The actionable misrepresentation, in this scenario, demands a clear suggestion that the plaintiff has either endorsed or officially licensed the defendant's products, or somehow retains a degree of control over them. This is typically addressed through the aforementioned tort of passing off, a legal tool designed to prevent the unauthorized piggybacking on another's hard-earned fame. The meaning of this rather abstract legal concept, as with most things human, is best understood through the messy, principal cases that have shaped its contours.

Country-specific jurisdictions

Australia

In Australia, the legal landscape, ever so practical, does not countenance a distinct, standalone "right of personality." Instead, any perceived false association or endorsement is addressed with commendable efficiency through the established framework of the law of passing off. It's a less romantic, more direct approach to intellectual property. The seminal case illustrating this principle is Henderson v Radio Corp Pty Ltd [6], a rather illustrative decision from the Supreme Court of New South Wales, adjudicated at both the initial and appellate levels. The plaintiffs, a pair of distinguished ballroom dancers, initiated legal proceedings against the defendant, alleging that their photograph had been wrongfully emblazoned upon the cover of a gramophone record titled Strictly for Dancing: Vol. 1. The court, in its wisdom, granted an injunction, finding that the unauthorized use of their image implicitly suggested that the dancers either recommended or approved of the defendant's products, or at the very least, possessed some form of commercial affiliation with them. It was a victory for implied endorsement, or rather, the lack thereof.

However, the legal scales tipped in a different direction in the 1988 case of Honey v Australian Airlines [7]. Here, Gary Honey, a celebrated Australian athlete, found his claim for damages rebuffed after Australian Airlines deployed his photograph on a poster without bothering to secure his permission. The presiding judge, in a rather discerning judgment, concluded that the poster's visual narrative conveyed a general sense of excellence, an abstract ideal, rather than specifically spotlighting or endorsing Mr. Honey as an individual. One might argue that the distinction between "this person is great" and "this product is great because of this person" remains a rather fine, and often frustrating, line for the legal system to delineate.

Canada

The Canadian legal system presents a fascinating duality in its approach to personality rights, navigating between explicit statutory protections and the evolving nuances of common law.

Statutory protection

Several provinces within Canada—specifically British Columbia, Manitoba, Newfoundland and Labrador, and Saskatchewan—have taken the legislative initiative to enact specific privacy legislation that, among other things, directly addresses personality rights. These provincial statutes, while sharing a common protective spirit, exhibit distinct characteristics [8]:

An appropriation of personality can be constituted through the unauthorized deployment of a person's name, their visual likeness, or their distinctive vocal signature. It is worth noting, however, that British Columbia's statutory definition tends to be somewhat more restrictive in its scope.
For an action to succeed, the plaintiff must be unequivocally identified or identifiable through the use made of their persona. It's not enough to simply vaguely resemble someone; the connection must be clear.
An action for the appropriation of personality is generally contingent upon the defendant's demonstrable intent to commit the wrong. Without this element of deliberate transgression, the claim may falter. (British Columbia, in a pragmatic twist, dispenses with this "intention" requirement).
The defendant's unauthorized use of the plaintiff's persona must have demonstrably resulted in a gain or advantage for the defendant. (Again, British Columbia's definition is narrower, focusing exclusively on commercial gain).
Crucially, an appropriation of personality is actionable without the necessity of proving actual damages. The infringement itself is deemed sufficient for legal recourse.
The right of action for appropriation of personality is, with a certain finality, extinguished upon the death of the individual whose privacy was violated. Apparently, some rights don't get to live on in perpetuity.
A number of statutory defences are uniformly recognized across all four provinces. These include: (i) the plaintiff's explicit consent to the use of their persona; (ii) the use being merely incidental to the legitimate exercise of a lawful right of defence of person or property; (iii) the use being expressly authorized or mandated under a provincial law or by a court order, or any formal process of a court; and (iv) the act being performed by a peace officer acting within the legitimate scope of their duties. The Manitoba Act, ever so generous, provides for additional defences beyond these.

Common law provinces

The common law provinces of Canada, while lacking the explicit legislative directives found elsewhere, have nonetheless developed a limited, yet evolving, recognition of personality rights. This judicial journey commenced with the 1971 Ontario decision in Krouse v. Chrysler Canada Ltd.. In this landmark case, the Court wisely held that when an individual possesses a demonstrable marketable value in their likeness, and this likeness is subsequently used in a manner that implies an endorsement of a product, then legitimate grounds for an action in appropriation of personality arise. It was a clear signal that fame, when exploited, demands its due. This nascent right was further elaborated upon and expanded in Athans v. Canadian Adventure Camps (1977), where the Court broadened the scope, confirming that the personality right encompassed both an individual's image and their name.

However, the boundaries of this right were tested in Gould Estate v. Stoddart Publishing Co. Ltd. (1998). In this instance, the Ontario Court of Appeal definitively concluded that merely chronicling the life of an individual, even with the explicit aim of generating a profit from the publication, does not, in and of itself, constitute an appropriation of personality. One might infer that biography, however commercial, is not quite the same as endorsement.

The general tort of appropriation of personality continues its slow, deliberate march of development, but it is currently when? widely anticipated that it will eventually achieve universal recognition across all common law provinces [9]. This evolving tort is expected to solidify around several key characteristics [10]:

The Athans case firmly establishes a "proprietary right in the exclusive marketing for gain of his personality, image and name..." This underscores the commercial value inherent in one's public persona.
A consistent requirement remains that the plaintiff must be identifiable. Without a clear link to the individual, the claim lacks foundation.
Any successful action for appropriation of personality at common law will necessitate a finding of intentional action on the part of the defendant.
There is a clear requirement that the defendant must have acted for the purpose of commercial gain. However, Gould suggests this may be further constrained to "endorsement-type situations," narrowing the scope somewhat.
A point of lingering legal ambiguity is whether the common law tort of appropriation of personality is actionable per se, meaning actionable without proof of specific damages, or if damages must be demonstrably shown.
While privacy rights are generally extinguished upon death, personality rights, in a more enduring fashion, are deemed inheritable. So, your descendants might still be able to sue over your likeness.
A defendant will not be held liable for an appropriation of personality at common law under several circumstances: (i) if the plaintiff has explicitly consented to the use of their persona; (ii) if the use made of their personality rights was merely incidental to another, primary purpose; or (iii) if the publication in question constitutes a matter of legitimate public interest.

Quebec

In a decisive move towards comprehensive personal protection, the new Civil Code of Quebec, introduced in 1994, brought forth groundbreaking provisions that unequivocally enshrine the right to privacy as a fundamental attribute of personality. This legislative act marked a significant departure, embedding these protections directly into the fabric of the province's legal identity [11]:

Every person is the holder of personality rights, such as the right to life, the right to the inviolability and integrity of his person, and the right to the respect of his name, reputation and privacy. These rights are inalienable. ...

The following acts, in particular, may be considered as invasions of the privacy of a person: (1) entering or taking anything in his dwelling; (2) intentionally intercepting or using his private communications; (3) appropriating or using his image or voice while he is in private premises; (4) keeping his private life under observation by any means; (5) using his name, image, likeness or voice for a purpose other than the legitimate information of the public; (6) using his correspondence, manuscripts or other personal documents.

Further solidifying these protections, the Supreme Court of Canada, in the notable case of Aubry v Éditions Vice-Versa Inc [12], affirmed that under the privacy provisions embedded within Quebec's Charter of Human Rights and Freedoms, a photographer, while permitted to capture images in public spaces, is generally prohibited from publishing such pictures without first obtaining explicit permission from the subject. This prohibition is relaxed only in specific circumstances: where the subject appears in an incidental manner, or where their professional success is inherently reliant on public opinion. The relevant provisions of the Charter, which underpin this stance, declare:

Every person has a right to the safeguard of his dignity, honour and reputation.

Every person has a right to respect for his private life.

From these legislative and judicial pronouncements, a clear set of general characteristics regarding personality rights in Quebec can be discerned [13]:

The act of appropriation of personality can manifest through the unauthorized use of an individual's name, their visual likeness, or their distinctive voice.
For an appropriation of personality to be actionable, the plaintiff must be unequivocally recognizable. Ambiguity simply won't suffice.
Unlike some other jurisdictions, there is no requirement for the courts to ascertain an element of intent on the part of the defendant. The act itself is the focus.
Any distinctions based on purely commercial purposes are deemed irrelevant, and indeed, inconsistent with § 9.1 of the Quebec Charter. This suggests a broader protection, less tethered to economic exploitation.
The plaintiff is, however, required to demonstrate that they suffered actual damage as a direct consequence of the appropriation of their personality rights.
Quebec law may permit an action to be pursued by the estate of a deceased person, provided that a demonstrable "patrimonial aspect" (i.e., an economic interest) can be proven to be at stake. So, even in death, your commercial legacy might still be litigable.
A defendant will not be held liable for an appropriation of personality under Quebec law in specific scenarios: (i) if the plaintiff has either expressly or implicitly consented to the appropriation of their personality; (ii) if the use of the individual's persona is merely incidental to another, primary purpose; (iii) if the appropriation of personality is expressly authorized by law; or (iv) if the publication in question constitutes a matter of legitimate public interest.

Cyprus

In Cyprus, the legal framework offers a rather robust shield for individuals depicted in photographs. People have the inherent right to object to the use of their images in advertisements and their subsequent publication in magazines, even if the photograph was initially captured in what is deemed a public place [14]. This suggests a strong emphasis on individual control over one's visual representation, regardless of the setting in which it was obtained. One might observe that a public space does not automatically grant public domain over one's face.

Denmark

Denmark, through chapters 26 and 27 of the Danish Penal Code, bestows upon its citizens certain personality rights. The governmental Danish Data Protection Agency has further clarified these protections, particularly regarding the publication of images of individuals in public areas on the internet [15].

The prevailing legal stance is that, as a general rule, any publication of a "portrait photograph" necessitates the explicit consent of the person depicted. The rationale behind this is rooted in the understanding that such a publication could cause discomfort to the individual, especially when coupled with identifying information such as their name, and considering the broad accessibility of the internet. The discomfort of the depicted person is judged to outweigh any potential public interest in the publication. A "portrait photograph" is narrowly defined as an image whose primary purpose is to depict one or more specific individuals. However, an exception exists for persons who are widely accepted as public figures, for whom personality rights may be contracted. It's a pragmatic concession to the realities of public life, though it does not negate the underlying principle of consent.

France

In France, the protection of personality rights is firmly anchored in article 9 of the French civil code, a testament to the nation's long-standing emphasis on individual privacy and dignity. While facts that are already publicly known and images of public figures generally fall outside the scope of protection—a nod to the public's right to information—the unauthorized use of someone's image or personal history has been consistently deemed actionable under French law. The line between public interest and private life, it seems, is meticulously drawn.

Perhaps the most notorious illustration of this legal principle in recent memory involves the publication of Le Grand Secret [16], a book detailing the private life of former President François Mitterrand. In this controversial work, Mitterrand's personal physician not only divulged intimate details about the President's life, but also, far more critically, revealed medical confidences that were unequivocally protected by the sacrosanct principle of doctor–patient privilege. It was a glaring reminder that some secrets, even those of a head of state, are not for public consumption.

Germany

Germany, with its meticulous legal framework, safeguards personality rights under the comprehensive umbrella of the German civil code. This system introduces the nuanced concept of an "absolute person of contemporary history," a designation that acknowledges an individual's role in shaping historical narratives while still affording them a degree of protection for their privacy outside the glare of the public sphere. It's a sophisticated attempt to balance historical documentation with individual dignity.

A particularly concise and authoritative articulation of German law on this matter can be found in the judicial statement from the celebrated Marlene Dietrich case [17]:

the general right of personality has been recognised in the case law of the German Federal Court of Justice since 1954 as a basic right constitutionally guaranteed by Articles 1 and 2 of the Basic Law and at the same time as an "other right" protected in civil law under § 823 (1) of the BGB (established case law since BGHZ 13, 334, 338—readers' letters). It guarantees as against all the world the protection of human dignity and the right to free development of the personality. Special forms of manifestation of the general right of personality are the right to one's own picture (§§ 22 ff. of the KUG [de]) and the right to one's name (§ 12 of the BGB). They guarantee protection of the personality for the sphere regulated by them.

Beyond these general personality rights, Germany has enacted specific, stringent rules to prevent particularly egregious invasions of privacy. For instance, § 184k StGB explicitly forbids the taking of intimate pictures without consent, recognizing the profound violation inherent in such acts. Furthermore, § 201 StGB prohibits the capture of images that intrude upon the "most personal sphere" of those pictured. This specifically includes photographs of private situations, such as those taken inside a bedroom, and images of helpless persons, such as accident victims, who are unable to give consent or defend themselves. Crucially, and in contrast to the more general rules concerning the right to one's image, these specific provisions apply not only to the publication of such images but also to the mere act of taking them. It's a proactive defense against the voyeuristic gaze.

Greece

The legal framework in Greece concerning personality rights is primarily governed by Articles 57 AK and Law 2472/1997. When it comes to photography, the rules are rather clear-cut, if somewhat restrictive by certain international standards:

Taking a picture of a person in a public space: This action, perhaps surprisingly to some, generally requires consent. The act of capturing a photo or video of someone, or even depicting them in a drawing, is considered an illegal act by itself according to Article 57 of the Greek Civil Code (57 ΑΚ, 57 Αστικός Κώδικας), irrespective of whether the resulting image is ever published [18]. The law does, however, pragmatically assume that consent has been tacitly provided if the depicted person has received payment for the photography session. Additionally, certain exceptions are made for "persons of contemporary history," acknowledging their public role. Furthermore, Law 2472/1997 extends its reach to many circumstances, even encompassing the photographing of political rallies in public places or the police. In a rather unique provision, Greece also mandates that photographers obtain a government permit before documenting individuals participating in political protests in public spaces [19]. One might find this level of bureaucratic oversight rather... thorough.
Publishing pictures of a person in a public space: Unsurprisingly, given the above, the publication of such images also requires consent [18]. Notably, the publication of photographs depicting identifiable police officers engaged in beating civilians in public places may be deemed contrary to Law 2472/1997. As such, these images are often required to be submitted to the authorities for review, a measure intended, presumably, to ensure proper legal process [19].
Commercial use of a published picture of a person in a public space: For any commercial exploitation of a person's image taken in a public setting, explicit consent is unequivocally required [18]. The commercial value of a face, it seems, remains firmly in the hands of its owner.

Guernsey

The small but legally sophisticated Bailiwick of Guernsey made a significant legislative stride on December 3, 2012, with the enactment of the Image Rights Bailiwick of Guernsey Ordinance 2012. This forward-thinking legislation allows for the formal registration of a personality right, meticulously linked with a broad array of images associated with that specific personality. The definition of "images" itself is remarkably expansive, encompassing not just visual representations but any number of personal attributes. This includes a person's likeness, their distinctive mannerisms, characteristic gestures, the unique qualities of their voice, a familiar nickname, and much more. It's a comprehensive approach to capturing the essence of an individual's public persona.

Personalities eligible for registration are categorized into five distinct types: sole, joint, group, legal, and fictional character. This wide scope ensures protection for a diverse range of identities. Furthermore, in a provision that is particularly advantageous for estate managers and trustees, human personalities can be registered for a period extending up to 100 years after the date of death. This makes Guernsey's law exceptionally favorable for the long-term management and protection of a deceased individual's commercial legacy. One might conclude that in Guernsey, your image can indeed outlive you, and continue to generate revenue.

Hong Kong

In Hong Kong, much like in the majority of other common law jurisdictions, the legal system does not recognize a distinct, standalone "personality right." Instead, instances of false association or unauthorized endorsement are robustly addressed through the well-established legal framework of passing off. It's a pragmatic, rather than esoteric, approach to protecting commercial identity. The most prominent case illuminating this principle involved the renowned Cantopop singer and actor Andy Lau and the Hang Seng Bank [20]. The dispute centered on the allegedly unauthorized use of Lau's image on credit cards, a commercial application that understandably drew his ire. This particular case has led legal observers to conclude that only a rather limited form of personality rights currently exists within this jurisdiction [21]. It seems that even in a city famed for its vibrant celebrity culture, the legal system remains somewhat conservative in its recognition of inherent personality rights.

Iran

The legal landscape in Iran regarding the "right to fame" remains a relatively underexplored territory, with few dedicated studies having delved into its specifics. However, through the application of broader, general legal principles, consistent efforts have been made to extend a degree of support and protection to celebrities [22]. This suggests that while a specific, codified "right to fame" may not explicitly exist, the underlying concepts of reputation and commercial identity are implicitly addressed within the existing legal framework. It's a protection by proxy, perhaps, but a protection nonetheless.

Jamaica

In a significant 1994 case that garnered considerable attention, involving the estate of the iconic musician Bob Marley, the Supreme Court of Jamaica delivered a pivotal ruling. The court unequivocally acknowledged the existence of a proprietary right of personality that, crucially, survived his death [23]. This decision was a landmark, affirming that the commercial value and identity of a person, particularly one of Marley's global stature, could continue to be legally protected even after their physical demise. It's a testament to the enduring power of a legacy, both cultural and commercial.

Japan

In October 2007, the celebrated J-pop duo Pink Lady initiated legal proceedings against the publisher Kobunsha, seeking ¥3.7 million in damages. Their grievance stemmed from the unauthorized use of their photographs in an article published in the magazine Josei Jishin, which promoted a dieting regimen through dancing, all without the duo's explicit permission. However, their claim was ultimately rejected by the Tokyo District Court. The duo, undeterred, pursued an appeal, but in February 2012, the Supreme Court definitively rejected their appeal, firmly basing its decision on the existing framework of the right of publicity [24][25]. This outcome underscores a rather conservative interpretation of personality rights in Japan, particularly when balanced against journalistic or informational uses. One might infer that simply appearing in an article, even without consent, does not automatically trigger a commercial exploitation claim.

Portugal

In Portugal, the protection of personality rights is robustly established under the "tutela geral da personalidade," specifically article 70 of the Portuguese Civil Code, and further reinforced by article 17 of the Constitution of the Portuguese Republic. This dual protection ensures a comprehensive legal shield for individual identity.

Certain personality rights, such as the fundamental right to image or honor, are explicitly delineated and typified in the civil code within the articles immediately following the "tutela geral." This provides clear, specific guidance on these crucial aspects of personal protection.

Specifically concerning image rights, article 79 of the Portuguese Civil Code unequivocally states that an image of a person cannot be published or exposed without their express consent. This protection extends even after the person's death, in which case the requisite consent must be obtained from existing family members or legal heirs. However, there are pragmatic exceptions to this rule: consent is not required for public personalities when they are acting in their public roles, for images used for scientific, didactic, or cultural purposes, or when the image is captured in a public setting. Nevertheless, a crucial caveat exists: even in these exceptional circumstances, if the image demonstrably harms the honor, reputation, or decorum of the individual, it cannot be reproduced or exposed without their consent. It's a careful balance between public interest and personal dignity.

People's Republic of China

In the People's Republic of China, rights of personality are not left to the vagaries of judicial interpretation but are instead firmly established by statute. Articles 100 and 101 of the General Principle of Civil Law explicitly safeguard the right of name and the right of image, providing a clear legal foundation for these aspects of individual identity. It is, for instance, expressly prohibited to utilize another person's image for commercial purposes without securing that person's prior consent.

A significant legislative development occurred with the new Tort Liabilities Law, which came into effect on January 1, 2021. This law marked the first time that the right to privacy was explicitly mentioned within Chinese legislation [26]. This inclusion signals a growing recognition and formalization of individual privacy protections within the rapidly evolving Chinese legal system.

South Africa

In South Africa, personality rights find their protection under the robust framework of the South African law of delict and are further fortified by the Bill of Rights, which, in a democratic balancing act, also guarantees freedom of expression and freedom of association [27]. After a period of considerable uncertainty regarding the legal recognition of image rights in South Africa, the Supreme Court of Appeal provided much-needed clarity in the landmark case of Grütter v Lombard [28][29][30].

In South African jurisprudence, a person's right to identity is deemed violated under two primary scenarios:

If the attributes of that person are used without permission in a manner that cannot be reconciled with the true image of that individual [31]. This form of infringement, beyond the unauthorized use of an image, also implies some form of misrepresentation concerning the individual. For example, suggesting that the individual endorses or approves a particular product or service, or falsely claiming that an attorney is a partner in a firm when such is not the case. It's about preserving the integrity of one's public persona.
Secondly, the right to identity is violated if the attributes of a person are used without authorization by another person for commercial gain [32][33]. Beyond the unauthorized use of the individual's image, this type of use fundamentally entails a commercial motive, exclusively aimed at promoting a service or product, or soliciting clients or customers. The mere incidental benefit or profit derived by the user from a product or service where the individual's attributes have been incidentally used is not, in itself, sufficient to trigger this violation. This infringement specifically targets the unauthorized commercial exploitation of an individual's attributes, whether through direct advertisement or the manufacture and distribution of merchandise emblazoned with their persona.

It is crucial to understand that personality rights are not absolute. The use of a person's attributes must be demonstrably unlawful before a plaintiff can successfully pursue a claim. In cases involving the use of a person's image, a delicate balancing act is often required. The individual's personality rights, their privacy, their inherent human dignity, and their freedom of association must be weighed against the user's countervailing right to freedom of expression. The unauthorized use of a person's image can, however, be justified on several grounds: if consent was obtained, if the use is truthful and in the public interest, if it constitutes fair comment, or if it is clearly intended as jest [34]. It's a complex interplay of rights, as most things in law tend to be.

South Korea

In South Korea, while the concept of personality rights is indeed recognized within its legal framework, it has not yet achieved widespread public awareness or common usage. As defined in section 751 of the Civil Code [35]:

A person who has injured the person, liberty or fame of another or has inflicted any mental anguish to another person shall be liable to make compensation for damages arising therefrom.

Despite this foundational recognition, the specific Korean terminology for personality rights ("인격표지영리권," literally translating to "personality sign commercial rights") is still significantly less frequently employed than the direct transcription of the English term "publicity rights." This linguistic preference highlights the ongoing evolution and assimilation of the concept within Korean legal discourse.

As of October 2023, there is no independent, standalone law dedicated solely to personality rights in South Korea. However, a significant step was taken in 2022 with the enactment of a related provision under the existing Unfair Competition Prevention Act [36][37]. This revision is widely regarded as laying crucial groundwork for the potential establishment of an independent Act in the foreseeable future. The impetus for such legislative action is considerable, as evidenced by reports indicating that approximately 80% of Korean entertainment agencies have voiced significant difficulties stemming from publicity right violations concerning their talents [38]. The entertainment industry, it seems, is a powerful driver for legal reform.

On December 26, 2022, the Ministry of Justice formally announced its intentions to stipulate personality rights directly within the Civil Code in the near future [39][40]. The most notable and impactful distinction between this proposed new law and the existing Publicity Rights provision under the Unfair Competition Prevention Act would be a significant expansion of its scope. The new law aims to extend protection beyond just "celebrities," recognizing the inherent right of every individual to control the use of their name, portrait, voice, and other identifying attributes.

While personality rights are understood to exist to some extent, influenced by both constitutional principles and tort liability [41][42], attempts to enforce such rights against commercial entities like shopping malls have, thus far, proven largely unsuccessful [43][44]. This highlights the ongoing challenges in applying these evolving legal concepts in practical commercial contexts.

A distinctive characteristic of South Korea's approach is the relatively broad recognition of portrait rights compared to many other nations. This often leads to the common practice in South Korean media reports of blurring people's faces in press photographs, even in situations where there is no conceivable issue of defamation. This practice stands in stark contrast to most countries, where such blurring is generally regarded as a distortion of the truth. The widespread blurring of public faces in South Korean media, even when the risk of defamation is nil, has drawn considerable criticism, questioning the necessity and implications of such an expansive interpretation of portrait rights [45].

Spain

In Spain, the collection and dissemination of an individual's images on the internet without their explicit consent can lead to severe legal repercussions. According to the Spanish Data Protection Agency, such actions may constitute a serious breach of the Data Protection Act, carrying a minimum fine of 60,000 euros. This demonstrates a robust legal commitment to protecting individual image rights in the digital sphere. El Mundo reported that the Data Protection Agency has, on occasion, initiated investigations ex officio (on its own initiative) purely based on the distribution of a person's image on the internet without their consent [46]. This proactive enforcement highlights the seriousness with which Spanish law approaches the unauthorized use of personal images online.

United States

In the United States, the right of publicity presents a rather fragmented legal landscape, primarily rooted in state-level law rather than a unified federal mandate. Consequently, the degree of recognition and enforcement of this right can fluctuate significantly from one state to the next [47]. The underlying rationale for the right of publicity in the U.S. is a dual-pronged beast, drawing its sustenance from both the fundamental concept of privacy and the ever-present allure of economic exploitation [48].

These rights are firmly entrenched in tort law, and they find a conceptual parallel in Prosser's influential "Four Torts" of privacy. These torts can be concisely summarized as: 1) Intrusion upon physical solitude (the invasion of one's physical space); 2) public disclosure of private facts (revealing intimate details that are not of public concern); 3) depiction in a false light (portraying someone in a misleading or offensive way); and 4) appropriation of name and likeness (the commercial use of one's identity without consent). When viewed through this Prosser prism, a violation of the right of publicity aligns most closely with the fourth tort: appropriation. This right often manifests most clearly in commercial contexts, such as advertising campaigns or the sale of merchandise. In states that have not codified a specific right of publicity statute, the right is typically recognized and enforced through the evolving principles of common law. The right of publicity, a relatively modern legal construct, has undergone rapid development, marked by a rich history of reported cases across the United States and indeed, globally [49].

The right of publicity is precisely defined as the inherent right of all individuals to exercise control over the commercial utilization of their names, their images, their likenesses, or any other identifying aspects of their unique identity. In specific contexts, and under U.S. law, this right of publicity is subject to limitations imposed by the First Amendment, which protects freedom of speech and expression. The right of publicity can be referred to interchangeably as "publicity rights" or even "personality rights." The term "right of publicity" itself was coined by the astute Judge Jerome Frank in a 1953 legal opinion [50].

The precise extent to which this right is recognized in the U.S. is largely dictated by state-specific statute or case law. Given that the right of publicity is primarily governed by state rather than federal law, the degree of its recognition can, and often does, vary considerably from one state to the next. It is crucial to understand that the right of publicity is not merely an analogue to trademark law, although it shares some common ground with the protection of trademarks. One must appreciate that the right of publicity constitutes a distinct legal doctrine, possessing its own unique policies, objectives, and standards, including notable divergences from trademark law [51]. For instance, the elements of falsity or the likelihood of confusion, which are central to trademark claims, generally do not need to be established to present a colorable right of publicity claim.

At the national level, the U.S. Supreme Court weighed in on the matter in the seminal 1977 case of Zacchini v. Scripps-Howard Broadcasting Co.. The Court held that the First Amendment did not grant immunity to a television station from liability for broadcasting Hugo Zacchini's entire human cannonball act without his express consent. This ruling marked a significant moment, being the first, and to date, the only, U.S. Supreme Court decision directly addressing rights of publicity. It served to unequivocally confirm the overall validity of the doctrine and the legitimate interests it is designed to protect.

Among the various state statutes, Indiana boasts one of the more robust right of publicity statutes in the U.S. Its law provides for the recognition of the right for an impressive 100 years post-mortem, extending protection not only to the universally recognized "name, image, and likeness," but also to an individual's signature, photograph, distinctive gestures, unique appearances, and even specific mannerisms. One might commend Indiana for its thoroughness. Notably, Oklahoma also provides a generous 100 years of post-death protection, while Tennessee's statute grants rights that, quite remarkably, do not ever expire, provided their use is continuous. There are other noteworthy characteristics to the Indiana law, example needed, though much of the significant legal activity and jurisprudential development in the realm of right of publicity emanates from the influential states of New York and California. These states have generated a substantial body of case law, which, perhaps inevitably, sometimes suggests potentially contradictory positions regarding the recognition of the right of publicity under various specific circumstances.

Some states recognize the right exclusively through statute, while others rely on the adaptable principles of common law. California, ever the trendsetter, possesses both statutory and common-law strains of authority, which, rather neatly, protect slightly different manifestations of the right. The right of publicity, sharing characteristics with a property right, is thus transferable to a person's heirs after their death. The Celebrities Rights Act, enacted in California in 1985, significantly extended these personality rights for a celebrity to a period of 70 years following their demise. This was a direct legislative response to the earlier 1979 decision in Lugosi v. Universal Pictures, where the California Supreme Court had ruled that the personality rights of Bela Lugosi (famous for his portrayal of Dracula) could not, in fact, pass to his heirs [52][53]. The legislature, it seems, decided that some legacies were simply too valuable to fade.

A selection of noteworthy cases further illuminates the evolving contours of personality rights in the U.S.:

In October 1990, actor Crispin Glover initiated a lawsuit against Universal Studios. His complaint alleged both the unauthorized use of his likeness and the egregious use of footage featuring him from Back to the Future within its sequel, Back to the Future Part II. Glover's permission had not been sought for this latter use, and consequently, he received no compensation. Following the denial of a motion to dismiss, the case was ultimately settled for an undisclosed amount, a rather common outcome in such disputes. This case had broader implications: the Screen Actors Guild subsequently amended its rules to explicitly prohibit its members from unauthorized mimicking of other SAG members [54][55]. A clear message that even digital doppelgängers require consent.
September 2002 saw a high-profile legal battle when Tom Cruise and Nicole Kidman sued the luxury cosmetics company Sephora. Their claim alleged that Sephora had used a picture of the famous couple without permission in a promotional brochure for perfumes [56]. Even celebrity power couples, it seems, draw a line at unauthorized fragrance endorsements.
In March 2003, eight members of the cast of the acclaimed television series The Sopranos brought legal action against electronics retailer Best Buy. They alleged that their images had been used in newspaper advertisements without their prior authorization [57]. Evidently, even mobsters have rights when it comes to their commercial likeness.
The July 2003 case of ETW Corp. v. Jireh Publishing delivered a notable ruling: a painting depicting the golfer Tiger Woods alongside other figures was deemed protected by the US Constitution's First Amendment. The court concluded that the artwork infringed neither on the golfer's trademarks nor his publicity rights. Similarly, in the July 2003 case of Johnny and Edgar Winter v. DC Comics, a comic book depiction of the blues music duo, the Winter brothers, as characters called the "Autumn Brothers" (portrayed as worms), also received First Amendment protection against a publicity rights suit. These cases highlight the delicate balance courts attempt to strike between an individual's right to control their image and the broader protection afforded to artistic expression. In May 2005, Toney v. Oreal USA Inc. further clarified the nuanced distinction between the purview of copyright law and the fundamental nature of publicity rights [58].
The 2006 New York County Supreme Court case of Nussenzweig v. DiCorcia, after dismissing the complaint on statute of limitations grounds, offered an alternative holding. It asserted that personality rights are, in fact, limited by First Amendment rights of artistic freedom of expression [59][a]. This decision was subsequently affirmed on appeal by both the Appellate Division and the Court of Appeals, though those higher courts chose to address only the statute of limitations holding, leaving the significant First Amendment aspect untouched [60].
In 2008, a federal judge in California ruled that Marilyn Monroe's right of publicity was not protectable in California. The court's reasoning was rather specific: despite Monroe having died in California, she was legally domiciled in New York at the time of her death. Since New York law, at that time, did not protect a celebrity's post-mortem right of publicity, her right of publicity was deemed to have ended upon her death [61]. A stark reminder that legal domiciles can have profound and lasting implications.
The 2009 case of James "Jim" Brown v. Electronic Arts, Inc. saw the United States District Court for the Central District of California dismiss athlete Jim Brown's theory of false endorsement under the Lanham Act. The court determined that the First Amendment protected the unauthorized use of a trademark in an artistic work when that mark possesses artistic relevance to the work and does not explicitly mislead as to the source or content of the work. Applying this test, the court found an absence of implied endorsement and concluded that the First Amendment shielded Electronic Arts in its use of a virtual football player that bore a resemblance to Mr. Brown [62]. Video game realism, it seems, can sometimes trump personality rights.
In 2019, model Emily Ratajkowski found herself on the receiving end of a copyright infringement lawsuit filed by photographer Robert O'Neil. The suit arose when she posted a paparazzi picture, taken by O'Neil, depicting Ratajkowski outside a flower shop in Manhattan, to her Instagram story [63]. The image showed Ratajkowski with a bouquet of flowers obscuring her face, and she accompanied it with the caption, "mood forever." While the parties ultimately settled the copyright claim out of court, this dispute raised significant right of publicity concerns [64], particularly regarding the use of Ratajkowski's portrait and picture under the New York right of publicity statute [65]. However, courts have historically often characterized the licensing or publishing of such paparazzi images as non-commercial uses, complicating the right of publicity argument [64]. Emily Ratajkowski now when? faces a similar copyright infringement suit for posting yet another photographer's paparazzi picture of herself to her Instagram account [66]. It seems even celebrities struggle with the digital age's blurring lines of ownership.
On April 29, 2020, the NCAA Board of Governors threw its weight behind proposed rules for college athletes, which were anticipated to come into effect in 2021 needs update. These rules would fundamentally alter the landscape of amateur sports by allowing athletes to be compensated for the use of their name, image, and likeness (NIL) in endorsements and personal appearances [67]. A long-overdue acknowledgment, perhaps, that even "amateurs" have a right to profit from their own identity.

U.S. jurisdictions that recognize rights of publicity

The following is a list of U.S. jurisdictions that have explicitly recognized rights of publicity, either through statutory enactment or common law precedent:

Alabama (common law) [68]
Arkansas (statute) [69][70]
California (statute and common law) [71][70][68][72] (see Celebrities Rights Act)
Connecticut (common law) [68]
District of Columbia (common law) [73][74]
Florida (statute) [75]
Georgia (common law) [68]
Hawaii (statute) [68][76]
Idaho (common law) [77]
Illinois (statute) [68][78]
Indiana (statute) [79][70][68][80]
Kentucky (statute and common law) [68]
Massachusetts (statute) [68]
Michigan (common law) [68]
Minnesota (common law) [68]
Missouri (common law) [68]
Nebraska (statute) [68]
Nevada (statute) [68]
New Jersey (common law) [68]
New York (statute) [68][81]
Ohio (common law) [68]
Oklahoma (statute) [82][68]
Pennsylvania (common law) [68]
Rhode Island (statute) [68]
South Dakota (statute) [83][70]
Tennessee (statute) [68]
Texas (common law) [68]
Utah (statute and common law) [68]
Virginia (statute) [68]
Washington (statute) [84]
Wisconsin (statute and common law) [68][85]

California Civil Code Section 3344(a) states, with a rather direct clarity:

Any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof.