The case I was think of was Robinson v. Rochester Folding Box Co. (1902). Robinson's image was used and the NY Appeals Court ruled against Robinson as no law existed preventing the use of the image.


A fast google search revealed a number of other cases, including Vanna White vs. Samsung (1999?) and Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc. (1953).




1. In the Beginning. An offshoot of the right of privacy--or, more colloquially, the "right to be left alone"--the right of publicity as a separate doctrine generally is considered to have emerged in a 1953 Second Circuit decision, Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc.(10) In that case, Judge Frank found an exclusive, assignable right of commercial exploitation of one's name or likeness.(11) He used the term "right of publicity" to distinguish this commercial right from the privacy concept of protection from an invasion of one's personal enclave of solitude.(12) Two influential law review articles followed the Haelan decision, one by Melville Nimmer(13) and one by William Prosser.(14) Prosser's article recognized that the appropriation tort at the root of the right of publicity fundamentally differed from the conventional privacy torts.(15) However, he still categorized it as a form of "privacy" tort, rather than as a separate and distinct claim.(16) Shortly after the Haelan decision, Nimmer argued that limitations on the privacy tort and other available torts made them unsuitable vehicles for protecting rights of publicity.(17) He asserted that the right of publicity should be treated "as a property (not a personal) right."(18) His rationale for such protection was that publicity values normally are the result of expenditures of time and effort by the celebrity and the celebrity should be "entitled to the fruit of his labors, unless there are important countervailing policy considerations."(19)

From these roots a rather large tree has grown. No consistent doctrine has evolved that is followed in substantially all states.(20) However, many states have recognized some form of a right to control the commercial exploitation of one's name or likeness.(21) Most of the states have acceded to this through common law development;(22) ironically, New York, whose law the Haelan court ostensibly interpreted, recognizes only a statutory right.(23) The U.S. Supreme Court recognized the existence of right of publicity claims in Zacchini v. Scripps-Howard Broadcasting Co.(24) Zacchini examined the extent to which the First Amendment limited the right of publicity granted under state law; it did not create an independent federal law of publicity rights. The Zacchini decision has been credited, however, with spurring interest in using the right of publicity by attorneys and judges.(25) The recent expansion of this right to the point reached in the White decision prompts this discussion.

[link|http://www.google.com/search?q=cache:4VfstHqHrZY:www.lawsch.uga.edu/~jipl/vol3/welkowit.html+Roberson+v.+Rochester+Folding+Box+Co.&hl=en| SRC ]