A Right is Born: Celebrity, Property, and Postmodern Lawmaking
68 Pages Posted: 7 Nov 2010 Last revised: 11 Dec 2011
Date Written: November 5, 2010
This Article challenges the standard account of the creation of the right of publicity. In the legal literature, the prevailing narrative is of the right of publicity being intimately linked to the commodification of celebrity. Ultimately, however, there is more to the story of the right of publicity than the decision to protect something of economic value. It took decades after it had become clear that celebrities could be valuable commercial spokespersons for lawmakers to agree to make the right inheritable, separate from the dignitary right of privacy, and potentially applicable to any economic, secondary use that invoked the celebrity plaintiff. It was only in the later part of the twentieth century, when American understandings of celebrity became rationalized and democratized, that the right of publicity was reconceptualized as a much more vigorous and far-reaching economic entitlement. By examining the discourse and political environment surrounding the emergence of this new right, I offer a new narrative for the right of publicity’s creation, provide some broader insights into the social forces that shape property rights, and contribute to a growing body of legal theory examining the public’s role in producing legal change.
Keywords: celebrity, publicity, Haelan, intellectual property, legal history
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