Split Personality: Constructing a Coherent Right of Publicity Statute

Abstract

The right of publicity is a growing battleground, on which rights holders on the one hand (typically public figures and actors) and content creators and service providers on the other (typically media companies and Internet companies) clash. This right of publicity battle takes place against the backdrop of a theoretically inconsistent and unpredictable legal landscape. In enacting right of publicity statutes, commentators have noted that many states struggled to adopt a strong, consistent theory of why the right exists and what it should be designed to protect. In some states, this failure has resulted in a kind of cognitive dissonance, such as when the right of publicity is called both a “privacy right” (neither descendible nor transferable) and a “property right” (both descendible and transferable), often interchangeably. Other states have avoided planting a flag in one theory or another by defining the right of publicity broadly, and then scaling it back based on various exceptions. As Eric Johnson notes in his recent essay, “Disentangling the Right of Publicity,” such statutes define the right by “saying what the right of publicity is not.”

Given this situation, one would wonder whether legislation could be drafted that would avoid the pitfalls of current right of publicity statutes, and potentially bridge the gap between the parties at odds in the debate. But, given that the right of publicity is controversial, could consensus be reached? What elements would a uniform statute likely contain? What issues would it need to address? To understand how future legislation might be structured, it is important first to recognize how right of publicity statutes are structured today. To further this analysis, this article walks through both the theoretical underpinnings of the right of publicity and the elements that typically are included in right of publicity statutes.

Keywords: Right of Publicity, Legislation, State Law, Right of Privacy, Consumer Protection, Personality Right, Celebrity, Name Rights, Likeness