From headlining a movie, to starring in a commercial, to endorsing a product, a celebrity’s persona is potentially worth thousands to millions of dollars. Since Midler, the Ninth Circuit, as well as most jurisdictions recognizing the right of publicity, continues to struggle in establishing definitive boundaries for protecting a celebrity’s likeness and persona. The right of publicity has gone from unrecognized at the turn of the twentieth century to finding its roots through an expanded interpretation of privacy law to protecting not only name and likeness but additional traits of a celebrity’s persona. As several cases implicitly hold, the fact that the person’s likeness at the time of misappropriation has no celebrity-esque value will not serve as a bar to a remedy if the unauthorized use was for commercial gain, which arguably creates the requisite value. Two main problems exist when relying on these international laws for a right of publicity claim alleging the unauthorized commercial use of a celebrity’s name or likeness. Consequently, TRIPs drafters recognized, though narrowly, the need for a certain level of publicity protection because the unabated use of a celebrity’s name has the potential to cause severe consumer confusion, which trademark law at its root attempts to prevent.
Source: 15 Tex. Intell. Prop L.J. 239 (2007)