If the report on this link is accurate, that a Florida hair clinic used Brian Urlacher without permission to promote their services, this sounds like a clean-cut case of Right of Publicity infringement. Urlacher reportedly had an endorsement deal with a Florida clinic whose services Urlacher did in fact use, which will likely enhance his position in the damages portion of the lawsuit. Here’s a link with a bit more information: Brian Urlacher sues Florida hair clinic
I am always on watch for legislative developments or new case law concerning the Right of Publicity, but I also find it interesting to consider the path that the Right of Publicity has traveled. The body of case law on the Right of Publicity is some of the most fascinating, and at times colorful, in all of law.
When I was working on Indiana’s revised Right of Publicity statute in 2012, one of the points I emphasized to the legislative committee was that neither the revised legislation I was advancing nor the original Indiana Right of Publicity statute sought to create “new” rights. Instead, the statute aimed to codify common law recognition of rights analogous to the Right of Publicity.
I recently came across an article in Res Gestae, January /February 2013, Vol. 56, No. 6, entitled Intrusion into privacy… by Neal Eggeson, which exemplifies the point I was making to Indiana’s legislature. The article notes the case Continental Optical Co. v. Reed, 86 N.E.2d 306 (1949), in which the court recognized the tort of appropriation of a lens grinder whose image was used without authorization in an advertisement for a lens manufacturer. The Res Gestae article is not about the Right of Publicity, but this does illuminate how one can pick up the trail of a concept, or store away data that may be useful in the future.
Just looking out for the viewers and users of www.RightOfPublicity.com.