Applying Genericide to the Right of Publicity

Abstract

This article proposes applying genericide to the right of publicity in order to cabin the over-expansion of publicity rights. This is a different approach than previous proposals to curb publicity rights, which seek to either narrow the definition of publicity rights or bolster defenses, such as the First Amendment. Instead, applying genericide would terminate the right of publicity when the celebrity’s persona has a primarily generic meaning for the public. Like trademark genericide, a celebrity’s image can come to refer to an idea, not to the identity of the source of the product or to the identity of the celebrity. Genericide would enhance free speech by putting cultural icons fully in the public domain. At the same time, this article argues that celebrities would not substantially lose the right to control use of their identities because, at the point at which a celebrity’s image would be subject to genericide, the public has already appropriated the image and imbued it with a new meaning.