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Right of Publicity, Identity, and Performance

25 Pages Posted: 29 Oct 2012  

K. J. Greene

Thomas Jefferson School of Law

Date Written: October 29, 2012


This essay sketches out the impact of right of publicity law on black cultural production. More concretely, it considers consider the implications of publicity law for black artists, and what help, if any, publicity rights offer to the problem of under-protection of performance rights. The right of publicity protects against unauthorized appropriation of a person's name, likeness, portrait, picture, voice and other indicia of identity or persona. This essay focuses on the issue of performance rights, or lack thereof, for artists generally and black artists in particular. Like other Intellectual Property Rights (IPR), the right of publicity has the potential to shrink both the public domain and the marketplace of ideas, thus preventing the dissemination of informational and creative works. Standard practice when writing an article about the right of publicity is to note the intense criticism the right engenders in the academic literature. Not wishing to miss 'the fun,' this is the author's third article on publicity rights, after vowing publicly never to write in the area. As is common among IP scholars, the author has argued elsewhere that IPRs have expanded, and has targeted the right of publicity for particularly harsh treatment.

Keywords: intellectual property, right of publicity, performance, identity, African-Americans, black artists, racial discrimination, naked cowboy, Kim Kardashian

JEL Classification: K19, K39

Suggested Citation

Greene, K. J., Right of Publicity, Identity, and Performance (October 29, 2012). Santa Clara Computer & High Technology Law Journal, Vol. 28, No. 4, pp. 865, 2012; Thomas Jefferson School of Law Research Paper No. 2168060. Available at SSRN:

Kevin J. Greene (Contact Author)

Thomas Jefferson School of Law ( email )

1155 Island Ave
San Diego, CA 92101
United States
619-961-4246 (Phone)

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