The First Amendment and the Right(s) of Publicity

71 Pages Posted: 14 Apr 2020 Last revised: 7 Jul 2020

See all articles by Robert Post

Robert Post

Yale Law School

Jennifer E. Rothman

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

Date Written: April 7, 2020

Abstract

The right of publicity protects persons against unauthorized uses of their identity, most typically their names, images, or voices. The right is in obvious tension with freedom of speech. Yet courts seeking to reconcile the right with the First Amendment have to date produced only a notoriously confused muddle of inconsistent constitutional doctrine. In this Article we suggest a way out of the maze. We propose a relatively straightforward framework for analyzing how the right of publicity should be squared with First Amendment principles.

At the root of contemporary constitutional confusion lies a failure to articulate the precise state interests advanced by the right of publicity. We seek to remedy this deficiency by disaggregating four distinct state interests that the right of publicity is typically invoked to protect. We argue that in any given case the right of publicity is characteristically invoked to protect (one or more) of these four interests: the value of a plaintiff’s performance, the commercial value of a plaintiff’s identity, the dignity of a plaintiff, or the autonomous personality of a plaintiff.

Plaintiffs’ interests in their identity must always be weighed against defendants’ constitutional interests in their speech. We therefore isolate three constitutional kinds of communication, each with a distinct form of First Amendment protection. A defendant’s misappropriation of a plaintiff’s identity can occur in public discourse, in commercial speech, or in what we call “commodities.” We then discuss how constitutional protections for these three kinds of speech should intersect with the four different interests that right of publicity claims are typically invoked to protect.

The upshot is not a mechanical algorithm for producing correct constitutional outcomes, but an illumination of the constitutional stakes at issue in any given right of publicity action. We hope that by carefully surfacing the constitutional and policy stakes that beset the conflict between right(s) of publicity and the First Amendment, we have sketched a map that might substantially assist those who must navigate this tumultuous terrain.

Keywords: right of publicity, right of privacy, appropriation, misappropriation, First Amendment, free speech, privacy, torts, Zacchini

JEL Classification: K11, K13, K19, K29, 034, Z11, Z29, L82, L83, L86

Suggested Citation

Post, Robert and Rothman, Jennifer E., The First Amendment and the Right(s) of Publicity (April 7, 2020). Yale Law Journal, Vol. 130, 2020, Loyola Law School, Los Angeles Legal Studies Research Paper No. 2020-13, Yale Law School, Public Law Research Paper Forthcoming, Available at SSRN: https://ssrn.com/abstract=3553946

Robert Post

Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

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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