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A Right is Born: Celebrity, Property, and Postmodern Lawmaking

68 Pages Posted: 7 Nov 2010 Last revised: 11 Dec 2011

Mark Bartholomew

SUNY Buffalo Law School

Date Written: November 5, 2010

Abstract

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

Suggested Citation

Bartholomew, Mark, A Right is Born: Celebrity, Property, and Postmodern Lawmaking (November 5, 2010). Connecticut Law Review, Vol. 44, p. 301, 2011; Buffalo Legal Studies Research Paper No. 1703563. Available at SSRN: https://ssrn.com/abstract=1703563

Mark Bartholomew (Contact Author)

SUNY Buffalo Law School ( email )

528 O'Brian Hall
Buffalo, NY 14260-1100
United States
716-645-5959 (Phone)

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