The Subject Strikes Back:
Intellectual Property, Visual Pleasure & Resistance in the Arts

81 Pages Posted: 13 Jul 2022

See all articles by John Tehranian

John Tehranian

Southwestern Law School; University of California, Los Angeles (UCLA) - School of Law

Date Written: January 16, 2022

Abstract

The metaphor of the hunt pervades photography, exhorting those behind the camera to load, aim and shoot. But having long served as the proverbial prey whose ‘captured’ images form the subject matter of so many works, subjects have begun to strike back. From Jay-Z and Emily Ratajkowski to Taylor Swift and Naruto the crested macaque, subjects are pushing for greater control over the exploitation of their personae and representation of their bodies. The Subject Strikes Back identifies this significant moment and critically assesses the legal landscape related to subject rights, with a particular emphasis on the copyright, trademark and right-of-publicity issues at play. Bookended with two case studies from the world of modern art—the legal controversies surrounding Richard Prince’s New Portraits series and Andy Warhol’s iconic serigraphs of pop star Prince—the Article surveys the limited protection afforded to subjects under current copyright, trademark and right-of-publicity law, ascertains the key issues (including those related to race, gender and socioeconomic status) at stake in any potential expansion of subject rights, highlights obstacles presented by the extant jurisprudence, and analyzes the prospects for change.

Although sympathetic to the plight of subjects, the Article raises significant concerns about attempts to vindicate their interests through right-of-publicity and trademark law. Specifically, the Article posits that the protection of subject rights through publicity rights presents underappreciated problems related to copyright pre-emption, the blurry line between actionable advertising/merchandising uses of a likeness and non-actionable artistic uses (a distinction that carries significant implications for expressive freedoms) and gamesmanship and forum shopping in exploiting the patchwork nature of publicity rights protected at the state level. Meanwhile, although subjects have enjoyed some limited success wresting control over the use of their images through the Lanham Act and related unfair competition laws, the public policy concerns animating federal trademark doctrine make such reliance problematic, especially in light of incongruity and unpredictability of the relevant jurisprudence governing threshold issues of trademarkability and likelihood of confusion and the serious interference that subject-friendly holdings in trademark law can pose to the exercise of exclusive rights reserved for copyright holders.

In the end, the prospects for vindication of subject rights may be best served if copyright law expressly recognized the potential for authorial interests for subjects—an outcome currently precluded by copyright’s authorship-as-fixation doctrine. The Subject Strikes Back therefore highlights the significant work our intellectual property laws still have to do to properly align creative contributions with the reward of rights, recognize the economic value and dignitary interests of subjects and balance the rights of fixers and users with the rights of subjects.

Keywords: copyright law, subject rights, the male gaze, dignitary rights, publicity rights, trademark law, copyright preemption, anti-SLAPP statutes, photography, authorship, fixation

Suggested Citation

Tehranian, John, The Subject Strikes Back:
Intellectual Property, Visual Pleasure & Resistance in the Arts (January 16, 2022). American University Law Review, Vol. 71, No. 4, 2022, Available at SSRN: https://ssrn.com/abstract=4009950

John Tehranian (Contact Author)

Southwestern Law School ( email )

3050 Wilshire Blvd.
Los Angeles, CA 90010
United States

University of California, Los Angeles (UCLA) - School of Law ( email )

385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States

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