Constitutional Restraints on State Right of Publicity Laws

29 Pages Posted: 15 Jul 2003

See all articles by Jeremy T. Marr

Jeremy T. Marr

Boston College Law Review; Intellectual Property and Technology Forum at Boston College Law School; Boston College Law School

Abstract

Over the past fifty years, a new intellectual property right called the right of publicity has evolved under state common law. The author explores a recurring concern hinted at by several lower courts and dissenting opinions: that current publicity laws offend parts of the Constitution beyond the First Amendment and the Copyright Clause. The existing hodgepodge of state statutory and common law that makes up the right of publicity appears to be a minefield of constitutional hazards. Courts must consider a variety of First Amendment, Copyright Clause, Commerce Clause, Due Process Clause, and Full Faith and Credit Clause issues when resolving publicity rights cases. The author argues that Congress could simplify this area of the law considerably for plaintiffs, defendants, and courts by creating a limited preemptive federal right of publicity. Alternatively, the right could remain state-based and still avoid these issues through other approaches.

Keywords: Right of Publicity, Federalism, Due Process, Entertainment Law, Sports Law, Advertising, Constitutional Law

JEL Classification: H11,H73,H77,K11,K13,K19,K39,K41,M37,Z11

Suggested Citation

Marr, Jeremy T., Constitutional Restraints on State Right of Publicity Laws. Available at SSRN: https://ssrn.com/abstract=410025 or http://dx.doi.org/10.2139/ssrn.410025

Jeremy T. Marr (Contact Author)

Boston College Law Review ( email )

885 Centre Street
Newton, MA 02459-1163
United States

Intellectual Property and Technology Forum at Boston College Law School

885 Centre Street
Newton, MA 02459-1163
United States

Boston College Law School

885 Centre Street
Newton, MA 02459-1163
United States

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