Rights of Publicity, Privacy and Defamation – General Information

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1. In General

Rights of publicity, rights of privacy, and defamation are closely related to copyright and trademark law and are governed primarily by state, rather than federal law.


2. Right Of Publicity

The right of publicity protects a person’s interest in the commercial value of his or her identity.  The term “right of publicity” was established in a 1953 court decision that involved baseball players’ rights to prevent use of their likenesses and playing statistics on baseball cards without their permission.  Although there is currently no federal statute expressly recognizing a person’s right of publicity, this right has been recognized in many states and actually codified by statute.  Efforts to enact a North Carolina right of publicity statute in 2009 were unsuccessful.


3. Right Of Privacy

A right of privacy is defined as the right to restrict public disclosure of private facts or information.  It is a personal right- violations are considered tortious in nature and the focus is on injury. The test for liability is whether the intentional intrusion into another person’s private affairs would be highly offensive to a reasonable person.  The rationale for a right of privacy is that individuals have a right to be left alone and free from publicity about the private parts of their lives.  A defendant can be held liable for publication of private facts even when the facts are true.  The risk of liability is greatest for this claim when the facts have no public significance and when publicity about them would be highly offensive to a reasonable person.


4. Defamation

Defamation includes both libel (for written statements) and slander (for spoken statements).  Defamation is defined as a false statement of fact printed, spoken, or broadcast about a person that tends to injure that person’s reputation.  Any living person and almost any entity capable of having a reputation (including corporations and associations) can bring a lawsuit for defamation.  To prevail, one  must prove that the defendant made false statements concerning the plaintiff that were published to a third party causing injury to the plaintiff’s reputation.  There is an additional required element of proof regarding alleged defamation of a public figure.  A plaintiff who is a public figure must also prove that the statement was made with malice (reckless disregard for the truth).  There is also a qualified privilege from a liability standpoint for public officials in the context of local government activities and proceedings- to be liable for defamation, it must be shown that a public official acted with malice in the making of a particular statement.