The Right of Publicity's Intellectual Property Turn

43 Pages Posted: 31 Jul 2019 Last revised: 12 Aug 2019

See all articles by Jennifer E. Rothman

Jennifer E. Rothman

Loyola Law School, Loyola Marymount University, Los Angeles; Yale Information Society Project, Yale Law School

Date Written: March 1, 2019

Abstract

The Article is adapted from a keynote lecture about my book, THE RIGHT OF PUBLICITY: PRIVACY REIMAGINED FOR A PUBLIC WORLD (Harvard Univ. Press 2018), delivered at Columbia Law School for its symposium, “Owning Personality: The Expanding Right of Publicity.” The book challenges the conventional historical and theoretical understanding of the right of publicity. By uncovering the history of the right of publicity’s development, the book reveals solutions to current clashes with free speech, individual liberty, and copyright law, as well as some opportunities for better protecting privacy in the digital age.

The lecture (as adapted for this Article) explores in greater depth one major theme drawn from the book ― the right of publicity’s turn in the late 1970s from being a personal right rooted in an individual to being an intellectual property right separable from the underlying identity-holder. This transformation of people into a form of intellectual property has led to significant expansions in the reach and scope of right of publicity laws across the country. At the same time, treating the right of publicity as IP has undermined First Amendment and copyright-based limits on these laws, and jeopardized the freedom of the very identity-holders upon whose interests the right is justified. The Article considers not only whether the IP rubric is appropriate for the right of publicity, but also whether the challenges posed by right of publicity laws are a magnified version of more general problems that IP laws face today ― in particular, the continued expansion of these rights unmoored from the initial justifications for the entitlements, and without adequate protections for socially valuable uses.

Keywords: right of publicity, right of privacy, right to privacy, intellectual property, transferability, alienability, First Amendment, property, torts, legal history, Erie doctrine, Haelan Labs. v. Topps Chewing Gum, Zacchini v. Scripps-Howard Broadcasting, legislation, postmortem, wills and trusts, tax

JEL Classification: KOO, K11, K13, K20, K39, L82, L83, L86, N71, N72, N81, N82, Z22, Z11, O33, O34

Suggested Citation

Rothman, Jennifer E., The Right of Publicity's Intellectual Property Turn (March 1, 2019). Columbia Journal of Law & the Arts, Vol. 42, No. 3, 2019; Loyola Law School, Los Angeles Legal Studies Research Paper No. 2019-21. Available at SSRN: https://ssrn.com/abstract=3427523

Jennifer E. Rothman (Contact Author)

Loyola Law School, Loyola Marymount University, Los Angeles ( email )

919 Albany Street
Los Angeles, CA 90015-1211
United States
(213) 736-2776 (Phone)
(213) 380-3769 (Fax)

HOME PAGE: http://www.lls.edu/faculty/facultylistl-r/rothmanjennifer/

Yale Information Society Project, Yale Law School ( email )

127 Wall Street
New Haven, CT 06511
United States

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