To date, no court has held that animals have a “right of publicity” akin to that enjoyed by humans.  To my knowledge, there have only been three cases on this issue.  In a New York case, a trial court held that the plaintiff could not invoke New York’s right of publicity statute on behalf of her pet dog when a dog biscuit company used the pooch’s image, without the owner’s permission, in an advertisement.  In a similar case in Missouri, an appeals court reversed a $5,000 jury verdict when the image of the plaintiff’s horse was used in an advertisement, also without permission.  The only other known case comes from Japan, where a Japanese court determined that a video game maker was not liable to the owners of race horses for using their horses’ names in a video game.  The underlining reasoning behind all of these cases is that the right of publicity is, traditionally, a natural right of every human being to control commercial uses of their identity.  The courts were clearly reluctant to extend this traditional right to animals.  See J. Thomas McCarthy, The Rights of Publicity and Privacy, §§ 4:36-4:38 (2d ed. 2008) (An invaluable resource for anyone practicing in this area of law -ed.).

On the other hand, there is no denying that some animals have very valuable publicity values in cases where animals have achieved a high degree of celebrity status.  Obvious examples include Rin Tin Tin, Lassie, Benji, Trigger, the Taco Bell Chihuahua, and Spuds McKenzie, to name a few.  Some owners of famous animals have asserted that the commercial exploitation of the photograph of their animal infringes on a “property interest” that the owner has in the animal; a very valuable property interest at that.  Although the protection of that interest through “right of publicity” law is suspect for the time being, it may not be long before a class of “famous” animals gets its day in court along with Hollywood celebrities.