Commercial Use Without Consent : Privacy or Property? / Sam G. Riley and Jack Shandle.

The question of whether protection against unauthorized use of a person's name of likeness for commercial gain is subsumed under property rights or the right to privacy remains unsettled. The thesis of this article is that either area may be appropriate, depending on the plaintiff's motivation in bringing the action. The case of Lugosi v. Universal Pictures illustrates the situational nature of the choice. Historically, the first two privacy cases involved the unauthorized use of a portrait or name for advertising purposes, but the primary interest in both was protecting individual dignity. The central concern in Lugosi, however, was the protection of property rights. Privacy has been recognized as inadequate in protecting celebrities' property rights because the very circumstance of being well known can prevent recovery. Some courts have recognized a "right of publicity" in cases involving professional athletes, an approach that may overcome the shortcomings of privacy law for celebrities, if not for the ordinary citizen. Any nondignitory cases concerning commercial appropriation of an individual's name or likeness should no longer be regarded as part of privacy law but should be considered as some form of common-law property right. (Author/JM)

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