Roberta Rosenthal Kwall
DePaul University - College of Law
Indiana Law Journal, Vol. 73, p. 1, 1997
No country in the world is so driven by personality as is the United States. Since 1953, when the right of publicity first received explicit legal recognition, courts, legislatures, and academicians have become increasingly interested in the doctrine's application and scope. Noticeably absent from virtually all of the judicial opinions and the volume of legal commentary on the right of publicity, however, is any consideration of the sociological and cultural influences that have prompted the doctrine's initial recognition and increasing application.
The right of publicity has come under attack recently on the ground that it eliminates important semiotic material from the public domain. Critics of the right of publicity charge that allowing celebrities to control the meanings of their constructed personas deprives us all of the ability to recode or reinterpret these texts for our own personal expression.
This Article contends that once the historical, sociological, and cultural influences are duly considered, the right of publicity's place in our legal system becomes more defensible, both theoretially and practically. On the whole, relatively little research exists on the underlying causes of the fame phenomenon in the United States. Moreover, the existing works do not attempt to illuminate the right of publicity in light of the complex explanations underlying our fascination with fame. This Article undertakes such an examination and demonstrates that the right of publicity is consistent not only with our cultural fabric and history, but also with our legal conceptions of property. In addition, this Article explores the socially based criticisms of the right of publicity, and finds them insufficient to negate the well-deserved status of the right of publicity as a property right.
Number of Pages in PDF File: 45Accepted Paper Series
Date posted: November 17, 2005 ; Last revised: May 23, 2012
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