Scope & Justification of the Right of Publicity

Abstract

These transcribed symposium comments discuss various normative justifications for the right of publicity, including copyright-like incentive theories, trademark-like false endorsement theories, and theories resting on the moral claims of labor. I discuss how each of these theories is a poor fit for at least some and perhaps most right of publicity cases, particularly insofar as rights of publicity and rights of privacy have been lumped together but their respective justifications are not compatible. I further argue that such normative justifications founder when it becomes necessary to consider the proportionality of a right-of-publicity plaintiff's interest to legitimate interests of their defendants. Finally, I propose that the way to avoid these challenges of justification is to seek alternative accounts of publicity and privacy claims, with publicity claims grounded in values pertaining to the relationship between people and their labor, and privacy claims grounded in our sense of what we have a right to expect of one another as human beings as a matter of reciprocal social obligations.

Keywords: Right of Publicity, Right to Privacy, Privacy Torts, Intellectual Property