Haelan Laboratories v. Topps Chewing Gum: Publicity as a Legal Right

Most scholars and courts credit Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., with ushering in the modern right of publicity in the United States. In Haelan, the Second Circuit Court of Appeals recognized an alienable legal right in the value of a celebrity image. In particular, the court held that baseball players could sell to one party the exclusive right to use their images on baseball cards. It’s not that celebrities lacked legal rights pre-Haelan. They could object to many uses of their name or likeness to advertise products, and had at least some cognizable privacy rights as well. But before Haelan, these legal rights focused largely on avoiding harm to the celebrity; no court had recognized celebrity images as legal rights that could be sold to the highest bidder. Since Haelan, this sale of celebrity has become ubiquitous. Although publicity interests had long floated around the edges of intellectual property, Haelan marked their debut as full-fledged intellectual property rights. Given the magnitude of its impact, Haelan was a remarkably terse decision – skimpy in its discussion of precedent, short on normative rationale, and utterly lacking in an examination of potential consequences. Together with the court’s sweeping definition of its new legal right, these shortcomings have created a sort of rogue intellectual property right, lacking internal limits and disciplined only by the intervention of the First Amendment. Scholars and even some judges have lamented this state of affairs, but their worries have done little to curb the legal right’s persistent expansion. How did this lawsuit between competing chewing gum manufacturers bring about such a revolution in the law’s treatment of celebrity identity? In my view, two features of the Haelan opinion interacted to produce a particularly unwieldy form of legal right. First, the Haelan court deliberately abandoned a harms-based approach to celebrity publicity rights, in favor of an approach centered on unjust enrichment. In doing so, the court paved the way for a presumption of celebrities’ entitlement to every cent of commercial value conferred by the use of their identities, without regard to whether the use caused them any reputational or personal harm. Second, because the Second Circuit considered only the perceived equities of the parties before it, the court failed to take into account the broader social consequences of recognizing or denying the right in any particular case. Unlike other forms of intellectual property, which have doctrinal tools for considering positive externalities created by a defendant’s use, the right of publicity defined in Haelan has no such escape valve. As a result, courts considering right of publicity claims have no mechanism for vindicating the interests of the public, except to rely on the slippery protection offered by the First Amendment. And parties considering the unauthorized use of a celebrity identity – whether through art, entertainment, or tongue-in-cheek ads – proceed at considerable risk. Perhaps all of this expansion was inevitable. Perhaps a court or legislature that fully considered all relevant interests would have given celebrities broad veto power over products that evoke them. But given the stakes, it’s at least unsettling to realize that publicity rights find their roots in a scant opinion that rested on an instinct that celebrities “would feel sorely deprived” if they weren’t given rights in their images. This chapter critically examines Haelan and its legacy. Despite a general history of unconstrained growth, a number of recent courts have taken note of Haelan’s weak conceptual footing in deciding whether to condemn particular uses of celebrity identity. From parody to portrait, courts have begun to evaluate whether society’s interest in recognizing publicity rights outweighs the First Amendment interests of sellers of celebrity-related products. Until now, these analyses have focused primarily on speakers’ interest in making critical commentary, and have left aside audience and speaker interests in non-critical forms of speech. Even so, they offer a framework for introducing a variety of speech interests into the mix. As celebrities assert their rights against an ever-expanding list of products that use or evoke their image, scholars and advocates have an opportunity to demonstrate the ways in which these products reflect or enable speech. Haelan’s right of publicity may have failed to anticipate the importance of these broader questions, but perhaps, now that a half-century has passed since Haelan, the time has come to examine them. As robust arguments for access meet up against the right of publicity’s weak normative justifications, the right of publicity may well return to its rightful place at the fringes of the intellectual property universe.