The right of publicity protects an individual's right to control the use of a personal asset such as his name, likeness, or performance, which has acquired pecuniary value through the investment of time, effort, or money. Although this right has gained increasing recognition since the 1950's, it has often been confused with the right of privacy, out of which the right of publicity evolved. In Zacchini v. Scripps-Howard Broadcasting Co., the United States Supreme Court held that the news media is not privileged under the first and fourteenth amendments to broadcast a performer's entire act without his consent. It is the position of this Note that the right of publicity is entirely separate from the right of privacy, and that clarification of this distinction will alleviate the confusion which has long muddied this are of tort law. This Note will also demonstrate that a clear distinction between publicity and privacy would enable the press to discern those situations in which it is privileged to report on newsworthy activities of celebrities, and that the press may define its privilege to entertainers' actual performances by referring to the traditional bounds of fair comment.
Note, Performer's Right of Publicity: A Limitation on News Privilege, 26 Clev. St. L. Rev. 587 (1977)