Copyright Preemption and the Right of Publicity

Abstract

This article addresses the conflict between an ever-expanding right of publicity and the federally guaranteed rights provided by copyright law. This conflict is highlighted in the Wendt v. Host International case in which the actors George Wendt and John Ratzenberger from Cheers used the right of publicity to prevent the show's creators from licensing the use of the Norm and Cliff characters in the decor of a chain of airport bars. Even though the licensing of the characters was explicitly allowed under copyright law, the Ninth Circuit held that the right of publicity prevented the creators from doing so. Similarly, performers have successfully used the right of publicity to prevent the making of sound-alike recordings even though the Copyright Act explicitly permits such recordings.

The vast majority of courts have not preempted the right of publicity even when it conflicts with clearly established copyright law. This is true, in part, because most courts have relied almost exclusively on the preemption clause of the Copyright Act which is ambiguous and difficult to apply. Neither courts nor scholars have looked much beyond the Copyright Act's explicit preemption clause when considering preemption of publicity rights. This article proposes a new approach to analyzing copyright preemption - one which incorporates the broader principles of the Supremacy Clause to determine when copyright law should preempt the right of publicity. The article then presents a practical test for determining when the right of publicity stands as an obstacle to copyright law and should therefore be preempted.

JEL Classification: K1, K3, K10, K11, K12, K13, K2, K20, K30