Race to the Stars: A Federalism Argument for Leaving the Right of Publicity in the Hands of the States
27 Pages Posted: 15 Nov 2003
This note will argue that, given the variation in the right of publicity from state to state, and the relative newness of this property right, Congress should refrain from passing a law to federalize it. Although there are sound arguments for adopting this right, there are also reasons to hesitate. Given that only half of the states have adopted it, federalization seems premature. This Note will only obliquely address the main objection usually leveled at a robust right of publicity, namely that it stifles creativity and implicates First Amendment concerns. The focus instead will be on the right of individual states to choose not to create this property right within their borders, and the workability of a state-based system where rights of publicity are not uniform.
The right of publicity is a property right in the commercial use of one's persona. Approximately half of the states recognize it. Some of these make it descendible and assignable; in others, it expires with death. Although publicity rights are conceptually related to privacy rights, an area of tort law, the publicity right itself is a property right in the elements of personal identity. Privacy is a more limited right, which usually protects names and likenesses only. Privacy is a personal right that cannot be sold or given away, and lasts only through a person's lifetime. Publicity, in contrast, is alienable, may survive death, and has been expanded to protect a person?s voice, gestures, and mannerisms.
The right of publicity occupies a somewhat liminal position in the law. It is a property right, with the attendant characteristics of alienability and, sometimes, heritability. Like most property rights, it is state-created. But unlike most real property rights, its value is connected with persons, and is therefore mobile. Celebrities have received the ability to sue for commercial misappropriation even when they cannot claim more traditional privacy rights, but the cost of this creation of property rights has been uncertainty as to how far these rights extend beyond the borders of a given state and as to which state?s laws govern a particular misappropriation.
As celebrities seek out more protection against commercial exploitation, the right of publicity is becoming increasingly important. For example, in cases of digital manipulation, celebrities' personas may be used to promote merchandise without their consent. Action under the Lanham Act requires that there be consumer confusion, which may not exist in today's age of savvy marketing. There is no copyright claim if the image is not actually copied, but rather recreated and manipulated in cyberspace. Imagine a digital Marilyn Monroe hawking a certain kind of razor. She could gush that, if only she had had it at the time, the subway scene in the Seven-Year Itch would have been so much easier to prepare for. Consumers would not actually think that she was endorsing the product, and there would be no original from which the digital Marilyn was "copied." Could or should her heirs or assigns be able to stop this use, because they do not want her image used in this way? Do they have a right to share in the profits from it? States address these questions by constructing various right of publicity regimes.
After tracing the development of the right of publicity, this Note will give a more detailed description of its current form. It will then make a case for federalism in the area of the right of publicity, that is, a case for maintaining the status quo and letting the states define the right for themselves. To prove that states could reasonably disagree as to the merits of a publicity rights regime, this Note will examine the common justifications for the right as well as critical responses to them. However, the choice that states confront is not a simple all-or-nothing one: The fact that the right of publicity varies so widely even among states that recognize it indicates that they are experimenting with regard to various attributes of the right. This variation leads to conflicts as plaintiffs attempt to protect their personas from exploitation in fora that may not recognize the right. The Note will then present a solution for the most serious practical problem that the current, state-based right of publicity regime faces: choice-of-law conflicts. Finally, it will use the community property system to illustrate how a property regime can successfully vary from state to state.
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