Whose Who? The Case for a Kantian Right of Publicity
93 Pages Posted: 20 Apr 2000
Rapidly developing technological opportunities for unauthorized uses of identity -- from "virtual kidnaping" to digital casting in entertainment products -- coincide with growing demand for a preemptive federal right of publicity that can replace the existing welter of heterogeneous state laws. Progress is impeded, however, by intractable doctrinal confusion and academic hostility to the right of publicity as inimical to society's cultural need to manipulate celebrity images. Because the right of publicity is traditionally based on Lockean labor theory and analogized to intellectual property in created works, it is highly vulnerable to such attacks. To date, no serious attempt has been made to elaborate an alternative philosophical justification that can withstand them. This article uses Kantian philosophy to justify an autonomy-based right of publicity that has both a moral and a property dimension. In doing so, it challenges both the traditional approach to the right and its postmodernist critiques. First, the right of publicity proposed here rejects the existing doctrinal bifurcation of publicity and privacy rights, and explicitly embraces both the economic and moral facets of the individual's need to control the use of identity. Second, re-conceiving the right of publicity as autonomy-based rather than purely pecuniary, the article gives it greater weight in the balance against competing First Amendment considerations. At the same time, in order to contain potential abuses of a more expansive right of publicity, the article considers First Amendment, fair use, and first sale doctrine limitations, and incorporates various elements of those limitations into proposed legislative language establishing a preemptive federal right.
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