An Exclusive Right to Evoke

31 Pages Posted: 27 Jul 2003  

Stacey L. Dogan

Boston University - School of Law

Abstract

Ten years ago, in White v. Samsung Electronics America, the Ninth Circuit held that a robot violated Vanna White's publicity rights. Since the White decision, the tendency to equate evocation with infringement in trademark and right of publicity cases has only grown. In contrast to this expansionist trend in trademark and right of publicity law, however, courts in recent copyright cases have arguably backed off from a strong right to evoke. This Article identifies these trends and suggests some reasons for concern over an exclusive right to evoke. The author argues that if we wish to preserve a rich commons and avoid significantly chilling free expression, courts should at least cabin the right to evoke and ensure that, when utilized, it serves the law's normative goals.

Keywords: trademark, right of publicity, copyright

Suggested Citation

Dogan, Stacey L., An Exclusive Right to Evoke. Boston College Law Review, Vol. 44, 2003. Available at SSRN: https://ssrn.com/abstract=410547 or http://dx.doi.org/10.2139/ssrn.410547

Stacey L. Dogan (Contact Author)

Boston University - School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

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