The Right of Publicity and Autonomous Self-Definition
Mark P. McKenna
Notre Dame Law School
December 30, 2010
University of Pittsburgh Law Review, Vol. 67, 2005
Legal protection against unauthorized commercial uses of an individual's identity has grown significantly over the last fifty years as it has relentlessly pursued economic value. It was forced to focus on value because a false distinction between the harms suffered by private citizens and celebrities seemingly left celebrities without a privacy claim for commercial use of their identities. But the normative case for awarding individuals the economic value of their identity is weak, since celebrities do not need additional incentive to invest in either their native skill or in developing a persona. Still, while the prevailing justification is inadequate, as are other theories offered by supporters, courts and commentators have long ignored an important interest implicated by commercial use of identity that is applicable to both celebrities and non-celebrities. An individual's choices with regard to the companies and products with which she associates reflect her values, and unauthorized use of one's identity may interfere with her ability to express her values to the world. There are costs attendant to that loss of control, and those costs are borne uniquely by the individual to whom the identity refers. Thus, every individual has an interest in preventing uses of her identity that strip her of control over the meaning of her identity. It is that interest, and only that interest, that the law should protect. This paper sketches the outline of a claim based on an individual's interest in autonomous self-definition.
Number of Pages in PDF File: 70
Keywords: Right of publicity, privacy, intellectual property, autonomy, trademark
Date posted: September 8, 2005 ; Last revised: December 30, 2010
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