The right of publicity in the digital age – Doctrinal tensions, common law theories and proposals for solutions

In the fall of 2007, a federal appeals court ruled that the use of the names and records of Major League Baseball players without license or permission by an Internet fantasy sports website was protected speech and trumped the property rights of the players. The ruling by the U.S. federal appeals court in CBC v. MLBAM marks the latest skirmish in the long-simmering tension between the scope of the “Right of Publicity,” a common-law based doctrine that has expanded over the last half-century and the First Amendment's guarantee of free speech. This issue of where free speech ends and proprietary protection begins is the subject of a long line of cases – with conflicting rulings, different doctrines and a haphazard state-by-state approach. With the evolution of the Internet as a marketing and commerce tool, the economic implications of digital rights have increased the problem. This article tracks the development of the right of publicity tort, discusses the leading cases and proposes solutions.