TMZ and the Right of Publicity

A podcast I listen to was ranting about the worthlessness of TMZ and wondering how TMZ can publish pictures of celebrities without their approval.  The host’s point was that celebrities make their money on their image and would be compensated if they appeared in a commercial for a product or in an interview spot on late night, because their appearance drives viewers and dollars to the commercial or show.  TMZ,  however, presumably profits from showing pictures celebs but has to pay nothing to the celebrities for those pictures.

It got me interested.  I haven’t read enough law on this to answer the host’s question fully, but I would imagine that TMZ has been sued many times by celebrities and that the answer is out there.  It is something I am going to look into.

On a first reading of some major cases regarding the right of publicity, the right protects the name, likeness, and identity of a famous person, extending as far as the person’s voice or catchphrase.  The right is proprietary and can be negotiated through contract.  Consent is elemental.

Without consent, a person can sue for violation of the right of publicity.  However, newsworthiness is a defense.  Now, TMZ would clearly argue that a celebrity’s actions are newsworthy, that the public is interested in what a celebrity is doing, and that reporting on their behavior benefits the public.

I wonder if TMZ could also argue, though, that the personal life of a celebrity is different from the commercial life – that Brad Pitt derives his commercial value from his looks, his ability to act, and his reputation as an actor, not from his personal matters.  And perhaps this is an argument that can be made in TMZ’s defense – that there is a lack of nexus between the source of a celebrity’s commercial value and the way in which TMZ is using the footage which doesn’t even trigger the right of publicity.  On the other hand, undoubtedly, Pitt’s paycheck also reflects the studio’s gauge of how much his name in the credits will deliver, and that is a function – at least somewhat – of where his personal reputation is in the public.

Further, with the rise of stars-without-star-power such as Kim Kardashian, Nicole Richie, and Paris Hilton, the newsworthiness argument falters, or at least loses its base.  It is exactly those stars’ presence in the media that gave them value, and by continuing to force images of them through our television screens without payment, TMZ may be misappropriating that value.  Is it proper to apply a newsworthiness exception when the very value the right is protecting was created by the “news”?

More later.  After actual legal research.