The Final Frontier

Right of Publicity in Fictional Characters

The right of publicity secures an individual\'s right \"to control the commercial value and exploitation of his name and picture or likeness and to prevent others from unfairly appropriating this value for their commercial benefit.\" The author of this note advocates granting a right of publicity in a fictional character to an actor who portrays the fictional character, to the extent that the fictional character is so closely coupled with the actor that the character\'s use evokes the identity of the actor. After examining the social, economic, and preemption debates surrounding right of publicity claims, the author determines that the courts are correctly deciding that the right should include a general \"appropriation of identity\" test. Despite this judicial success, the author demonstrates that, currently, there is a lack of uniform legislation protecting the right of publicity. The author outlines the benefits that would follow the enactment of a federal statute protecting the right of publicity, and, in conclusion, the author encourages the application of an analytical framework to determine whether infringement of the actor\'s right of publicity took place.

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