Intellectual Property: Valuation, Exploitation and Infringement Damages 2013 Cumulative Supplement, 11th Edition

CHAPTER 14A

RIGHTS OF PRIVACY, PUBLICITY, AND CELEBRITY PERSONA (NEW)

  14A.1 INTRODUCTION

  14A.2 LEGAL UNDERPINNINGS

(a) Right of Privacy

(b) Right of Publicity

  14A.3 TRADEMARK RIGHTS

  14A.4 COPYRIGHT

  14A.5 LEGAL UNCERTAINTIES AND SOLUTIONS

  14A.6 A PHOTOGRAPHY ISSUE

  14A.7 CONCLUSION

14A.1 INTRODUCTION

A celebrity's persona can be intellectual property of immense value. The entertainment industry is based on images and sounds and, in the United States, is a significant element of our gross national product. It also represents one of our most significant exports. The market value of images and sounds has been the subject of multimillion-dollar transactions and litigation, and there is no indication that this activity will abate. In fact, as these images and sounds are increasingly captured in digital form and can flow worldwide with ease, it is to be expected that commerce and litigation will increase and questions of market value will multiply. In the face of this prospect, estimating the value of celebrity personae is a challenging task.

In Chapter 7 of the main volume, we described the essence of a valuation:

An alternative way of defining a valuation is that it describes an assumed (or “virtual”) transaction. That is, it is an estimate of the consideration (the agreed-upon price) in a transaction that has not taken place. Therefore, a valuation must describe the property rights presumed to be the focus of the transaction and the terms assumed, in order to make clear ...