Defining the Modern Right of Publicity
Texas Review of Entertainment & Sports Law: 15 Tex. Rev. Ent. & Sports L. 167
9 Pages Posted: 26 Sep 2014
Date Written: Spring 2014
Thanks to the modern right of publicity, a person’s identity has become a valuable commodity. Originally derivative of the privacy right of appropriation, the right of publicity now protects the use of one’s “name, likeness, or other indicia of identity for purposes of trade.” The right as currently construed was developed in 1953 by the Second Circuit in a case involving the right of baseball players to license their names and images for use in baseball cards. Today, it is recognized in almost every state, and it is asserted primarily to allow celebrities to “profit from the full commercial value of their identities.” Moreover, with the growth of the entertainment industry and the addition of new forms in which to exploit the likenesses of celebrities, the right of publicity has expanded significantly in recent years.
Putting aside the merits of even recognizing a right of publicity, the framework for litigating this right has become impossibly muddled. This environment should be surprising to no one, as a plaintiff’s right of publicity — a right with national and even international implications depending on the marketability of the plaintiff’s personality — may be litigated in fifty different ways depending on which state’s law is applied. The consequences of this confusion are far-reaching and have become more troubling as the right of publicity has expanded. In many cases, courts and parties alike are unsure which state’s law applies or even whether a plaintiff’s right of publicity is covered by whichever statute is applied. Perhaps the most significant consequence, however, is the chilling effect this expansive yet varied treatment of the right of publicity could have on First Amendment rights.
This article explores these results and argues that the time has come for a federal right of publicity. Part I examines the state of right of publicity law and discusses the current problems resulting from the lack of uniformity in how it is applied. Part II explains why existing federal law is inadequate in addressing right of publicity concerns. Finally, Part III analyzes the emerging implications of the right of publicity’s encroachment onto First Amendment rights and argues that any federal right of publicity must be narrowly drawn in order to avoid chilling free speech.
Keywords: Right of publicity, First Amendment, free speech, entertainment, celebrity
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