What’s the Difference Between Publicity Rights & Trademark Rights?

publicity rightsThough publicity rights and trademark rights are similar, they are not one and the same. 

Both publicity rights and trademark rights relate to the control of a certain image, and whether said image is endorsing something or not, whether it be the visage of a living or dead human being or a symbol or word. Eli Manning’s face cannot be used to sell weaponry without his permission – this would be a violation of his publicity rights, since the New York Giants quarterback controls his own image and whether it is used to endorse certain products, campaigns, etc. It is probable that Manning would not appreciate the false impression that he in some way approves the sale of something controversial such as weapons. Similarly, the New York Jets’ logo also cannot be used to sell weaponry. Chances are, the organization also would not be fond of its image being used in a gun advertisement or something of the sort. 

However, the hypothetical circumstance concerning the Jets would not be a violation of publicity rights, like the use of Manning’s image would. Instead, this latter situation would fall under the category of trademark rights violations. That’s because, although the two concepts are similar, they ultimately are applied differently. 

Right of publicity

Right of publicity, also referred to as one’s personality rights, typically refers to name, image and likeness. Everyone has the legal right to control the commercial value of their image, name and likeness. The use of any of those three things without the permission of the individual first would be a violation of his or her publicity rights. Essentially, this concept refers to the value of human identity in a commercial sense. This right is often associated with celebrities due to the frequent use of their images to sell products and services. It is classified as a property right, which means an individual’s right of publicity lives on after he or she passes. 

Trademark rights

Trademark rights are governed by the Trademark Act of 1946 or the Lanham Act. Unlike right of publicity, trademark rights refer to words, symbols or phrases. The Nike “swoosh,” for example, is a trademark. The company, meanwhile, uses Michael Jordan’s likeness to sell products – this being a publicity right of the former basketball player. Sometimes trademarks can extend beyond a logo or phrase to cover the shape or color of a product. In order for a mark to be considered a trademark, it must be distinctive. 

At times, publicity and trademark rights can overlap, but generally, they are separate, though similar, concepts. Both come up often in regard to celebrities and entertainment companies, and should be protected.

If you believe your trademark or publicity rights are being violated, speak with an entertainment law attorney to learn more. 

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Anthony R. Caruso is a business transactional attorney in New York and New Jersey with experience in structuring, negotiation and completion of legal deals involving business, entrepreneurs, athletes and performers.

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