The Right of Publicity: Privacy Reimagined for a Public World (Introduction)

Abstract

THE RIGHT OF PUBLICITY: PRIVACY REIMAGINED FOR A PUBLIC WORLD (Harvard University Press 2018), 256 pages, considers the opportunities and risks that today’s right of publicity laws pose. The right of publicity has become a negative force ― suppressing speech, blocking otherwise lawful uses of copyrighted works, forcing commercialization of the dead, and stripping people of ownership of their own identities. But this need not be so. The right of publicity has an important and powerful core insight that originated with the right of privacy ― that we should have some control over how others use our names and likenesses.

Rothman shows how the right has lost its way. Rothman contends that the right got off track when it transformed from a personal right, rooted in the individual (the "identity-holder"), into a powerful intellectual property right, external to the person, that can sold or taken by a nonidentity-holding "publicity-holder." The wrong turns by the right of publicity have been driven and continued by a host of mythologies that have sprung up surrounding both it and its predecessor, the right of privacy.

The first part of the book uses extensive archival research to debunk the common, though erroneous, stories about the two rights. The second part develops how today’s right of publicity came to be understood as an intellectual property right, different in nature from the right of privacy. In this part of the book, Rothman challenges the common justifications for having an IP-like right of publicity that is separate and apart from a right of privacy. In the final part of the book, Rothman tackles the three most pressing challenges posed by today’s right of publicity ― its threat to individual ownership and control of one’s own identity, its threat to free speech, and its conflicts with copyright law. Rothman concludes by providing a number of recommendations for putting the right of publicity back on course.

The downloadable document is an excerpt of the Introduction to the book. The complete work is currently available from Harvard University Press and other book sellers.

Keywords: right of publicity, privacy, intellectual property, copyright, copyright preemption, first amendment

JEL Classification: K1, K00, K11, K12, K13, K19, K35, K34, K31, K39, L82, L83, L84, M31, M37, Z11, Z22