Preserving Film Preservation from the Right of Publicity

Abstract

Emerging digital tools are enabling movie studios to "reanimate" living and deceased actors for inclusion in new creative works. In addition, these same tools will also offer opportunities for preserving and restoring existing movies that have been heavily damaged. Digital restoration of existing film stock, thus, provides an important contribution to preservation and distribution of culture. Recently, however, actors have begun pushing for more expansive rights of publicity to prevent nonconsensual uses of their likenesses in newly created works. But whatever the merits of those arguments, publicity rights should not be allowed to stymie restoration and distribution of already created films. We argue that courts and legislators must find that the First Amendment, copyright law, and general principles of public policy restrain the assertion of publicity rights against film preservation and restoration.

Keywords: Right of publicity, remaster, preservation, first amendment, free speech, preempt, privacy