A Copyright Right of Publicity
42 Pages Posted: 28 Apr 2016 Last revised: 5 May 2016
Date Written: May 1, 2016
This Article identifies a striking asymmetry in the law’s disparate treatment of publicity-rights holders and copyright holders. State-law publicity rights generally protect individuals from unauthorized use of their name and likeness by others. Publicity-claim liability, however, is limited by the First Amendment’s protection for expressive speech embodying a “transformative use” of the publicity-rights holder’s identity. This Article examines for the first time a further limitation imposed by copyright law: when a publicity-rights holder’s identity is transformatively depicted in a copyrighted work without consent, the author’s copyright can produce the peculiar result of enjoining the publicity-rights holder from using or engaging in speech about her own depiction. This Article offers novel contributions to the literature on copyright overreach and: (1) identifies a legal asymmetry produced in the interplay of publicity rights, copyright law, and the First Amendment; (2) examines the burdens on constitutionally protected speech, autonomy, and liberty interests of publicity-rights holders when copyright law prevents or constrains use of their own depiction; and (3) outlines a framework for recognizing a “copyright right of publicity” to exempt the publicity-rights holder’s use from copyright infringement liability.
Notably, this Article contributes uniquely to the literature by including an exclusive first-person narrative by an internationally recognized celebrity whose persona was prominently depicted without prior notice or consent in a wide-release feature film.
Keywords: Copyright, Right of Publicity, First Amendment, Fair Use, Transformative Use, Freedom of Speech, Privacy, Intellectual Property, Constitutional Law
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