The purpose of this Article is to explore the extent of an individual's right of privacy, vis-à-vis the concepts of commercial use and appropriations, which compromise rights of publicity. The deceptively simple, yet complex, conclusion to be drawn from this analysis is that a delicate balance of interests must be struck, either legislatively or judicially, between recognizing a full right of privacy, and its permutations in the right of publicity, with the press and news media. A definitive balancing test may be elusive, but at a minimum, a framework for principled decision making must be attempted. It is imperative that an individual be able to protect the economic interest built up in his name. The wrongful appropriator ensures that the aggrieved celebrity cannot guarantee protection from infringement to a prospective licensee. Moreover, the celebrity himself is denied the economic benefit of the commercial value of his identity. There is also the risk of misleading the public into thinking that the celebrity, whose persona has been appropriated, approves of the product. As a result, the public may be deceived into buying a product of inferior quality. The celebrity in turn has to bear the stigma of association with an inferior product. Effective protection of the right of publicity demands balancing it against whatever value society may derive from the so-called appropriations. What is called for is a test that properly evaluates the pertinent First Amendment concerns involved in right of publicity cases, and affords necessary protection against consumer deception and unauthorized association of the celebrity with the items being advertised.
George P. Smith, II, The Extent of Protection of The Individual’s Personality Against Commercial Use: Toward a New Property Right, 54 S.C. L. REV. 1 (2002).