Show Me the Money: Determining a Celebrity’s Fair Market Value in a Right of Publicity Action

As the power of celebrity continues to grow in the age of social media, so too does the price of using a celebrity’s name and likeness to promote a product. With the newfound ease of using Twitter, Facebook, and even print media to use a celebrity’s identity in conjunction with a product or company, right of publicity concerns arise. When a company uses a celebrity’s name and likeness without the celebrity’s authorization to market or sell a product, companies open themselves up to right of publicity suits. Many of these cases settle out of court. But when these cases do go to trial, a unique set of problems arise when expert testimony is used to determine the fair market value of the unauthorized use of the celebrity’s name or likeness. This Note examines two competing methods of fair market value calculation often utilized by expert witnesses, with a focus on one in particular—the hypothetical negotiation test—and examines this test using copyright and property principles. It concludes by arguing for a new way of viewing the hypothetical negotiation test, and proposes that the two competing tests may not be so different after all.