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RIGHTS OF PUBLICITY/PRIVACY (ROP)

Generally, the “right of publicity” includes the right to control the conditions under which an individual’s “persona” may or may not be used for profit  in commerce or for trade purposes. The term “persona” refers to those elements or personal characteristics, which make up an individual’s image, footprint or outward being by which the individual is universally known or identified. The “right of publicity” being a creature of state law, based on a particular state law, “persona” may include name, likeness, look-alikes, caricatures, voice, characteristic phrases and gestures.

The “right of publicity” may also prohibit the commercial use of look-alikes or of certain features, which when used in  certain context, may identify a particular

individual. Furthermore, the “right of publicity” may prohibit the commercial use of voices, sound-alikes or signatures.  Note that sound such as “voice” may also be trademarked.

The right of privacy on the other hand, protects against: (1) intrusions upon seclusion to obtain private facts; (2) unauthorized public disclosure of private facts, where such disclosure is highly offensive to an ordinary person; (3) the publication of a false or misleading representation or amputation, which places the subject in a false light that would be highly offensive to a reasonable person; and (4) appropriation of another’s name or likeness for one’s own benefit.

As stated above, there is no federal statute or common law governing the rights of publicity in the United States.  Similar rights may be conferred by copyright and trademark laws. For example, a federal statute known as the Lanham Act may provide a negative right “to assert an interest in personal identity sufficient to prevent someone else from registering a trademark or service mark.”