Intellectual Property Expansion: The Good, the Bad, and the Right of Publicity
K. J. Greene
Thomas Jefferson School of Law
December, 14 2009
Chapman Law Review, Vol. 11, No. 3, p. 521, 2008
Thomas Jefferson School of Law Research Paper No. 1523412
Using an analogy from hip-hop music, where a long-running dispute or "beef" has existed between East and West Coast rappers, in recent years a "beef" has emerged between two camps, the Intellectual Property (IP) Restrictors and the IP Expansionists. The divide typically features "rights holders, their investors and representatives" on the one side and "[liberal] academics ... consumer advocates, and civil libertarians" on the other. In rap "beefs," someone often ends up getting shot. In IP "beefs," no one has been shot to date or, at least, there is no record of violence. But there has been considerable sniping among academics, as anyone attending Association of American Law Schools (AALS) IP section meetings and various IP scholarly forums around the country can attest.
This article focuses on the right of publicity. A lot has been said about the right of publicity, most of it negative. The right of publicity, many analysts say, is out of control. They say it promotes censorship and "redistributes wealth upwards." The right of publicity creates significant tension with, and indeed threatens, core values of free speech. The right of publicity, in short, has a lot of analytical problems and yet, like all other forms of IP, it has expanded in recent years.
This article sketches how the expansion of the right of publicity fits into the rest of IP expansion, with a focus on trademark law and copyright law in the area of artistic creation. The right of publicity shares the closest doctrinal similarity to trademark law. Virtually every celebrity right of publicity case is co-joined with a Lanham Act trademark claim. Right of publicity cases, like trademark claims, make sense and are typically uncontroversial when they occur in a zone of pure commerce, such as advertising use. But both claims become problematic when they move toward artistic-related uses. The article's thesis is that IP expansion should look to enhance artistic creation at the bottom of the entertainment ecosystem, where the real creativity has always originated, rather than at the top.
In keeping with the theme of the author's work of recent years, this article uses African-American cultural production as a starting point of analysis. The reasons for doing so are three-fold: First, black cultural production is at the center of expressive creativity in American culture and has been since the slave songs of the 1800s, to the blues and jazz of the 1900s, up through the rap music of today. Second, black artists can stand in for socially and economically disadvantaged persons of all groups. Blacks have been at the "bottom of the barrel" of American society until very recent times. Third, as blacks have become upwardly mobile within society, their treatment illustrates how economic stratification skews the benefits of IP protection.
Number of Pages in PDF File: 24
Keywords: intellectual property, right of publicity, trademark, Lanham Act, black cultural production, black artists, African American artists, racial subordination
JEL Classification: K10
Date posted: December 14, 2009