Use it (every two years), or lose it (forever)--Tennessee's Personal Rights Protection Act and the post-mortem right of publicity

University of Memphis Law Review, The, Fall 2002 by Bodette, David C

I. INTRODUCTION

In 1984, the Tennessee Legislature enacted the Personal Rights Protection Act,1 thereby codifying the right of publicity in Tennessee.2 The right of publicity is the exclusive dominion and control over a person's name, likeness, image, or any attribute indicative of that person's identity.3 This control includes the right of the celebrity to profit from any value that his or her identity may possess.4 While this exclusive right surely continues throughout the life of the celebrity, it is less certain whether this right should extend to the heirs of the celebrity so as to prevent others from profiting after the celebrity's death.6 Critics of this point of view argue, however, that this right was intended to last only as long as the celebrity was alive or as long as the celebrity could exploit it personally.7

This note will set out Tennessee's right of publicity under both its common law origins and its statutory codification in 1984, and it will analyze the extent to which one's heirs or assigns can control a person's right to publicity.13 This note will also compare Tennessee's Personal Rights Protection Act of 1984 with the rights of publicity in sister jurisdictions, including those with only a common law right over the commercial use of one's name, image, or likeness.14 Finally, this note will criticize Tennessee's statutory limitation on the right of publicity past one's death, arguing that a failure to exhibit that right over a two-year period does not necessarily reflect a publicity right with no value.15 Through an analysis of the policy concerns of the Tennessee Legislature and the judiciary, this note's conclusion will propose that a thirty-year absolute right, combined with a five-year showing of non-use, furthers the same policies while fairly respecting the rights of the celebrity's heirs.16

II. A BRIEF HISTORY OF THE RIGHT OF PUBLICY

Perhaps furthering the Warren and Brandeis association of unauthorized exploitation to an invastion of privacy,22 Dean Prosser included wrongful appropriation in his definition of an invasion of privacy.23 Despite some acceptance of this definition,24 the inclusion of commercial exploitation was criticized as insufficient protection of property rights, as commentators noted that such a tortfeasor not only violates privacy, buy also profits from the invasion, thus achieving a monetary property gain that rightfully belongs to another person.25 The marked increase in teh value of celebrity since Warren and Brandeis's time gave credence to the argument for the necessity of a separate publicity property right.26

In Zacchini v. Scripps-Howard Broadcasting Co.,33 the United States Supreme Court decided that the right to control the commercial use of one's name, likeness, or image was a property right, and not a privacy right.34 In Zacchini, the plaintiff contested the airing of a video depicting his "human cannonball" act on a television news program without his consent.35 In affirming the Ohio Supreme Court's decision to allow the plaintiff to recover the economic losses suffered from the airing, the Court distinguished the torts of misappropriation of one's publicity right and intrusion into one's privacy.36 By airing the entire act without his approval, the Court noted:

Therefore, the Court recognized an inherent value of the performance that would decrease considerably if the Plaintiff could not retain full control over its production.

III. TENNESSEE's COMMON LAW RIGHT OF PUBLICITY -ELVIS MOVES TENNESSEE TO THE FOREFRONT OF THE DEBATE

A. Factors II-The Sixth Circuit Temporarily Resolves the Issue by Rejecting a Survivable Right of Publicity

Plaintiff argued that, despite the Zacchini holding, the right of publicity is not a true property right, but rather a proprietary right that extinguishes at one's death.41 The Western District of Tennessee disagreed and, applying Tennessee law, held that Presley's right to publicity passed directly to his estate and that Factors retained the exclusive right to profit from Presley's fame.42 The Sixth Circuit, however, overruled the district court and found that Tennessee would not recognize the survivability of the right of publicity in Memphis Development Foundation v. Factors (Factors II).43 Focusing on the practical problems of descendibility, the Factors II court first asked:

The Sixth Circuit also compared the right of publicity to a personal achievement belonging to the individual alone.45 After doing so, the Factors II court concluded that the right should not extend to the individual's heirs, observing:

Our legal system normally does not pass on to heirs other similar personal attributes even though the attributes may be shared during life by others or have some commercial value. Titles, offices and reputation are not inheritable. Neither are trust or distrust and friendship or enmity descendible. An employment contract during life does not create the right for heirs to take over the job. Fame falls in the same category as reputation; it is an attribute from which others may benefit but may not own.46