The Other Side of Garcia: The Right of Publicity and Copyright Preemption

8 Pages Posted: 12 Aug 2016 Last revised: 10 Nov 2016

See all articles by Jennifer E. Rothman

Jennifer E. Rothman

University of Pennsylvania Law School; Yale Information Society Project, Yale Law School

Date Written: 2016

Abstract

This essay is adapted from a talk that I gave on October 2, 2015 at Columbia Law School’s annual Kernochan Center Symposium. The all-day conference focused on Copyright Outside the Box. The essay considers the aftermath of Garcia v. Google, Inc., and the Ninth Circuit’s suggestion in that case that Garcia might have a right of publicity claim against the filmmakers, even though her copyright claim failed.

The essay provides a partial update of my prior work, Copyright Preemption and the Right of Publicity, 36 U.C. Davis L. Rev. 199 (2002), and suggests that despite numerous cases over the last decade, the law remains mired in confusion and contradictory decisions. Courts continue to apply the unworkable Section 301 from the Copyright Act, instead of applying broader principles of conflict preemption for which I have long advocated. Worst of all, the right of publicity remains on a collision course with copyright law with insufficient guidance as to when it should be preempted.

Keywords: right of publicity, copyright, preemption, intellectual property, supremacy clause, constitution, Dryer, Facenda, Wendt, Garcia, Google,

JEL Classification: K1, K11, K19, K39, L86, Z20

Suggested Citation

Rothman, Jennifer E., The Other Side of Garcia: The Right of Publicity and Copyright Preemption (2016). Columbia Journal of Law & the Arts, Vol. 39, No. 3, 2016, Loyola Law School, Los Angeles Legal Studies Research Paper No. 2016-30, Available at SSRN: https://ssrn.com/abstract=2820409

Jennifer E. Rothman (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

Yale Information Society Project, Yale Law School ( email )

127 Wall Street
New Haven, CT 06511
United States

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