The concept of a right of publicity -- Privacy and publicity : origin and distinctions -- The modern right of privacy -- Theory and policy supporting the right of publicity -- Requirements of a right of publicity action -- Post-mortem right of publicity -- Copyright preemption and the effect of licensing -- False endorsement and false designation of origin -- Fair use of celebrity names, images, and likenesses -- The future of the right of publicity -- Appendix. Chart of the fifty states' right of publicity laws.
Arnold Schwarzenegger recently sued a company that was marketing a machine gun-toting bobblehead doll made in his image. Schwarzenegger claimed that the producer was free-riding on the value of his image, violating his right of publicity. But where the Terminator turned Governor of California saw an attempt to exploit his hard-earned reputation, others saw valuable political speech intended to parody Schwarzenegger. The case ultimately settled, but not before drawing attention to the breadth of the current right of publicity, which has expanded to allow claims against an everincreasing range of conduct. As critics of Schwarzenegger's case recognized, his was only the latest in a long line of (often successful) attempts by celebrities to extend the claim's boundaries.6 And there is no end to that trend in sight; one can discern no principle in the current doctrine or its dominant theory on which any limitation might be based.
The purpose of the research is to compare the regulation of the right of publicity in the USA, the EU and Ukraine and to analyze its legal nature. Conducted examination allowed to conclude on the following. The right of publicity is one of the emerging rights belonging to celebrities who have gained publicity in certain spheres of show business (singers, actors, artists, writers, etc.), the sports industry, or politics; individuals who have become the victims of crime; and others. American legal doctrine has already developed case law and a legal framework allowing famous persons to freely license and transfer their right of publicity. The countries of the EU have not developed a unique approach regarding the right of publicity, while the Bailiwick of Guernsey has introduced a unique system of protection of the so-called image rights, creating a special register of such rights and allowing protection of moral and patrimonial rights to one׳s image, which is broadly defined. The right of publicity is distinguished from trademarks and copyright; an analysis of their legal nature shows that these objects are not identical. Current Ukrainian legislation provides for protection of one`s name and image, however the emerging market of show business in Ukraine makes it obvious that the right of publicity shall be introduced into Ukrainian Civil Code. A new right in Ukraine can be based on the example of the American model (i.e. on relevant provisions of the California Civil Code).
