Foreclosing on Fame: Exploring the Uncharted Boundaries of the Right of Publicity

Abstract:     
Since the 1950s in the United States, fame has increasingly been treated as a commodity rather than purely as a personal attribute. States, encouraged by entertainers, sports figures and their families, have created a new form of intellectual property interest called the right of publicity, a right to exploit one's identity for commercial purposes. Not only does the publicity right permit famous people, and increasingly their heirs and legatees, to control how their names and faces are used in a wide variety of settings, and to demand payment for approved uses, but the right is freely alienable; it can be transferred to third parties in whole or in part. Most of the scholarship examining this form of intellectual property has concentrated on the justifications for giving famous people this kind of control over (and right to profit from) the commercial use of their identities, and on the First Amendment ramifications of the interest. In other words, the scholarship has focused on the pros and cons of creating a property interest that advantages a celebrity, her heirs and assigns. But the legal assignment of property status to an interest can, under some circumstances, decrease, rather than increase, the control that the owner has over the valued asset. That darker side of the equation has received almost no attention either in the literature or in the case law dealing with publicity. In this article, we examine the right of publicity as an asset in the context of the debtor-creditor system. Whereas personal rights in one's privacy or reputation are generally unavailable for creditor seizure and sale, the transformation of the persona of an individual into a commodity logically should make it vulnerable to seizure by an unsatisfied creditor, permitting the control over how the right is exploited to be transferred by sale to the highest bidder. The right of publicity presents some complexities in the debtor-creditor context because the property interest may in some cases need to be disentangled from its residual overlay of personal rights, and because the use of property to satisfy a creditor's claims in insolvency must be handled in a way that respects the debtor's right to the benefits of her future labor. Our examination of the issues leads us to conclude that the complexities presented by treating publicity rights as property in the debtor-creditor context are resolvable, and indeed are similar to those presented by other types of property that are currently recognized in the debtor-creditor system and used to satisfy unpaid debts; the complexities do not militate against treating the right of publicity as an asset in the debtor-creditor system.

Number of Pages in PDF File: 33

JEL Classification: L11, L82, K00, Z11

Accepted Paper Series