Haelan Laboratories v. Topps — Right of Publicity

Q: What did Haelan v. Topps actually decide?

It held that a person has a 'right of publicity' in the commercial use of their photograph or likeness that is distinct from the right of privacy, and that this right can be exclusively granted to another party. An exclusive grantee may sue a competitor who knowingly uses the same person's image during the grant.

Q: Why is the case so important if it is just a Second Circuit decision?

Judge Jerome Frank coined the very phrase 'right of publicity' in this opinion. Courts and legislatures across the country later adopted the concept, and it became the foundation of modern publicity law, now recognized by statute or common law in most states.

Judge Jerome Frank coined the phrase 'right of publicity' in a 1953 fight over baseball-card photos, recognizing a transferable property interest in one's own image.

When two rival chewing-gum companies fought over the right to print baseball players’ photographs on the cards tucked inside their gum packets, they produced one of the quiet hinges of American intellectual property law. In Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir. 1953), cert. denied, 346 U.S. 816 (1953), Judge Jerome Frank, writing for the Second Circuit, coined a phrase that did not previously exist in the law: the “right of publicity.” In doing so he recognized that a person’s control over the commercial use of their own image is not merely a shield against emotional harm but a transferable, property-like interest that one party can grant exclusively to another. The decision launched a body of law that today governs everything from athlete endorsements to AI deepfakes.

At a glance

Case: Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir. 1953), cert. denied, 346 U.S. 816 (1953).
Court: United States Court of Appeals for the Second Circuit; opinion by Judge Jerome N. Frank.
Posture: Appeal from the District Court for the Eastern District of New York; reversed in part and remanded for trial.
Holding: A person has a “right of publicity” in the commercial use of their likeness, distinct from the New York statutory right of privacy, and an exclusive grantee of that right may enforce it against a competitor who knowingly uses the same person’s photograph during the term of the grant.
Significance: Coined the term “right of publicity” and established that the interest is assignable property, not merely a personal privacy claim — the doctrinal foundation of modern publicity law.

The baseball-card war that started it

Haelan Laboratories made chewing gum and, like its competitors, sweetened sales by packaging photographs of well-known baseball players with its product. Haelan had signed contracts with players granting it the exclusive right to use their photographs in connection with the sale of gum for a set period. Topps Chewing Gum, a direct competitor, then induced some of the same players to authorize Topps to use their photographs while Haelan’s exclusive contracts were still running. Haelan sued, claiming Topps had knowingly interfered with and invaded its exclusive rights.

Topps’s defense rested on the era’s prevailing understanding of the law. Under New York’s privacy statute (Civil Rights Law sections 50–51), the only recognized interest in one’s own image was a personal, non-assignable right of privacy. If that was the whole of the law, Haelan held nothing it could enforce — a player could only waive his own privacy, not grant a transferable commercial right. The case forced the court to decide whether the law recognized anything more.

Judge Frank invents the “right of publicity”

Judge Frank rejected the cramped privacy framing. A person, he reasoned, has more than an interest in being left alone; many public figures would feel no emotional injury at all from the use of their image and instead “would feel sorely deprived if they no longer received money for authorizing advertisements.” Prominent athletes and performers derive real economic value from licensing their likenesses, and the law should protect that value as a thing that can be bought, sold, and exclusively granted.

“This right might be called a ‘right of publicity,’” Frank wrote, naming the concept for the first time. He held that, in addition to and independent of the statutory right of privacy, a person has the exclusive right to grant the commercial use of their photograph, and that the grant of that right can validly transfer an enforceable interest to the grantee. Because Haelan held exclusive grants, it could sue Topps for knowingly using the same players’ images during the contract terms. The court reversed the dismissal and remanded for trial on which players were covered and when.

Why property framing mattered

The move from privacy to property was the whole game. A privacy right, being personal, dies with feelings of indignity and generally cannot be transferred; a licensee could never sue in its own name. By recognizing a separate, assignable right, the court made it possible to build an entire commercial market on identity — endorsement deals, exclusive licenses, and the trading-card industry itself all depend on a grantee being able to enforce what it paid for.

Frank’s reasoning was brief and almost casual, and he did not anchor it in any single statute; he framed it as a matter of New York common law alongside the privacy statute. That economy of analysis left questions for later courts: how long the right lasts, whether it survives death, and how it interacts with the First Amendment. But the core insight — that identity has transferable commercial value the law will protect — proved durable enough to spread to nearly every state.

Open questions

How far does the property right extend? Haelan established assignability but said nothing about duration, descendibility, or whether the right survives the person’s death — issues states later resolved in widely differing ways.
What are the limits against expression? The opinion did not confront the First Amendment, leaving courts to develop later the line between protected commentary, art, and parody and unauthorized commercial exploitation.
What identity attributes count? The case involved photographs; later disputes asked whether a name, voice, signature phrase, or other identifying traits trigger the same right.

Implications

Identity is licensable property. Haelan is the reason endorsement and likeness deals work: the right can be granted exclusively, and the grantee can enforce it in its own name.
Privacy and publicity are different claims. Plaintiffs and defendants must distinguish a personal, emotion-based privacy theory from a commercial, property-based publicity theory, because the remedies and transferability differ.
Knowing interference creates exposure. A competitor who induces a subject to authorize a use it knows conflicts with an existing exclusive grant risks liability to the grantee.
State-by-state variation begins here. Because the right grew from common law rather than a uniform statute, its scope still varies dramatically across jurisdictions, making choice of law a recurring battleground.
The doctrine scales to new technology. The same transferable-identity principle now frames debates over voice cloning, digital replicas, and AI-generated likenesses.

Frequently asked questions

What did Haelan v. Topps actually decide? It held that a person has a “right of publicity” in the commercial use of their photograph or likeness that is distinct from the right of privacy, and that this right can be exclusively granted to another party. An exclusive grantee may sue a competitor who knowingly uses the same person’s image during the grant.

Why is the case so important if it is just a Second Circuit decision? Judge Jerome Frank coined the very phrase “right of publicity” in this opinion. Courts and legislatures across the country later adopted the concept, and it became the foundation of modern publicity law, now recognized by statute or common law in most states.

How is the right of publicity different from the right of privacy? The right of privacy protects against emotional injury from unwanted exposure and is generally personal and non-transferable. The right of publicity protects the commercial value of identity, is treated as a property-like interest, and can be licensed or assigned, which is the distinction Haelan drew.