Brief Fact Summary. A company sold busts of Dr. Martin Luther King, Jr. without the consent of his family.
Synopsis of Rule of Law. The appropriation of another’s name and likeness, whether such likeness is a photograph or sculpture, without consent and for the financial gain of the appropriator is a tort, whether the person whose name and likeness is used is a private citizen or a public figure. Public figures have the right of publicity, and the measure of damages for them is the value of the appropriation to the user.
Issue. Is there a right of publicity distinct from the right of privacy?
The right of publicity is a celebrity’s right to the exclusive use of his or her name or likeness. Dr. King was a public figure.
A person has a right in the publicity value of his picture. Many prominent people would like to take advantage of the financial rewards that go along with their image. This right of publicity would not yield them any rewards unless it could be made the subject of an exclusive grant, which barred other advertisers from using their likeness.
Georgia has long recognized the rights of private citizens not to have their names and photographs used for the financial gain of the user without consent. A prominent public figure should be entitled to no less protection.
Therefore, the appropriation of another’s name and likeness, whether such likeness is a photograph or sculpture, without consent and for the financial gain of the appropriator is a tort, whether the person whose name and likeness is used is a private citizen or public figure. Public figures have the right of publicity, and the measure of damages for them is the value of the appropriation to the user.
The right of publicity survives the death of its owner and is inheritable and devisable. Even if a person does not exploit his name during his life, that person is still entitled to have his image protected against exploitation after death just as much as a person who exploited his image during life.
Concurrence. The court has created a new right in proclaiming a right of publicity. This new right threatens free speech. The majority says distributing a likeness of Dr. King is not speech, thereby removing the inquiry from Free Speech inquiries. Speech is not confined to exclusively verbal expression. Financial gain seems to be the watershed of violation of this newfound right. It is rare that any expression of sentiment beyond casual conversation is not somehow connected to financial gain. The dividing line of whether rights have been violated should be whether the act was unconscionable, not financial gain.
Discussion. A person might have several reasons for wanting to control his image, including financial gain or the desire to be kept out of the public eye. He or she (and his or her heirs) has a right to prevent other people from using his or her image without consent by invoking the right of publicity. Also, if a person has chosen not to exploit his image during life, other people should not be allowed to exploit the image after the person dies, unless, of course, consent is given by heirs. But it seems from this decision that the right only exists when the party using the image is doing so for commercial g