Integrating the Right of Publicity with First Amendment and Copyright Preemption Analysis

Abstract

Many states confer upon natural persons a “right of publicity” that renders unlawful the unauthorized use of a person’s name or other indicia of identity for purposes of trade. Efforts to reconcile publicity rights with the First Amendment and with principles of copyright preemption, however, have differed radically from one state or circuit to another, as well as within the scholarly community. In this Article, we present a comprehensive framework for integrating both First Amendment and copyright preemption principles into standard publicity analysis. Our framework eliminates much of the incoherence found in contemporary right of publicity case law by adopting a narrow reading of Zacchini v. Scripps-Howard Broadcasting Co. (to date, the only Supreme Court decision addressing the right of publicity), and by looking to principles of conflict preemption to cut through the indeterminacy of conventional preemption analysis under § 301 of the Copyright Act.

More precisely, we argue that First Amendment and copyright preemption analysis tend to converge on two relatively simple principles: first, that publicity claims arising in the context of commercial speech usually should withstand both First Amendment and copyright preemption challenges; and second, that publicity claims arising in the context of noncommercial speech may proceed only when, among other things, the exercise of publicity rights plausibly can be justified as advancing a state interest in protecting personal privacy or individual autonomy, or (possibly) in preventing consumers from erroneously perceiving that the plaintiff endorses a product that she does not, in fact, endorse. Viable publicity claims involving noncommercial speech should be small in number, however; and should the Supreme Court someday opt to eliminate the distinction between commercial and noncommercial speech regulation, or to overrule Zacchini in favor of a more speech-protective standard, the number of viable claims within both classes should shrink further still.

Keywords: publicity, first amendment, copyright, preemption