Abstract

http://ssrn.com/abstract=2118805
 


 



Toward a Limited Right of Publicity: An Argument for the Convergence of the Right of Publicity, Unfair Competition and Trademark Law


Andrew Beckerman-Rodau


Suffolk University Law School

2012

Fordham Intellectual Property, Media & Entertainment Law Journal, Vol. 23, p. 132, 2012
Suffolk University Law School Research Paper No. 13-13

Abstract:     
The right of publicity — the most recently developed type of intellectual property — allows a person to control commercial use of his or her identity. The scope of the right has expanded significantly since its inception because many courts and commentators have misinterpreted it, viewing it as a pure property right justified by a labor or unjust enrichment theory. Rather, this article contends that it should be evaluated in light of the utilitarian justification for intellectual property law. Rewarding people by allowing them to monetize their public persona is not the goal of the right of publicity. The goal should be to incentivize individuals to engage in creative endeavors for the benefit of the public. Accordingly, a right of publicity action should only be available if commercial use of an individual’s persona will result in the likelihood that consumers will be misled into thinking the individual endorsed or approved of the use of his or her identity. However, such confusion-based conduct is already actionable under trademark and unfair competition law. Therefore, I argue that any use of a person’s persona that creates an association with the person but does not create a likelihood that consumers will think the person endorsed or approved of the commercial use should only be actionable if the person is famous. This is consistent with trademark dilution law, which limits association-based trademark actions to famous trademarks. This approach places the right of publicity within the domain of intellectual property law and preserves the existing balances between protecting property rights, preventing free riding, and preserving robust free speech rights.

Number of Pages in PDF File: 55

Keywords: intellectual property, right of publicity, first amendment

JEL Classification: K11, K20

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Date posted: July 29, 2012 ; Last revised: April 11, 2013

Suggested Citation

Beckerman-Rodau, Andrew, Toward a Limited Right of Publicity: An Argument for the Convergence of the Right of Publicity, Unfair Competition and Trademark Law (2012). Fordham Intellectual Property, Media & Entertainment Law Journal, Vol. 23, p. 132, 2012; Suffolk University Law School Research Paper No. 13-13. Available at SSRN: http://ssrn.com/abstract=2118805 or http://dx.doi.org/10.2139/ssrn.2118805

Contact Information

Andrew Beckerman-Rodau (Contact Author)
Suffolk University Law School ( email )
120 Tremont Street
Boston, MA 02108-4977
United States
617-573-8557 (Phone)
617-305-3086 (Fax)
HOME PAGE: http://www.lawprofessor.org

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