Postmortem Publicity Rights at the Property-Personality Divide

Abstract

In this essay, I consider what private law theory and its various understandings of property reveal about the right of publicity. I begin by identifying the current state of right of publicity laws and the ongoing confusion over the right’s status as property. I then consider what it would mean to take seriously the right of publicity’s status as a property right. Applying various theories of property rights in the context of publicity rights lends insights for how we should understand both the right of publicity and property law itself. Such an analysis importantly illuminates that postmortem rights of publicity are best understood as something distinct from the right of publicity for the living. From a property-based perspective, a postmortem right makes more sense as an independent right, rather than as a surviving asset that passes to heirs after a person’s death. Placing publicity rights into a property rubric therefore does not answer the essential question of whether we should extend exclusionary rights to a dead person’s identity in the first place, but it does more clearly frame the need to develop an independent basis to do so.

Considering the right of publicity as a form of property also lends insights about property law itself. It supports Margaret Radin’s and others’ views that property related to personhood is different; this is particularly true here where we are considering not just “property for personhood” but property in a person. Treating the right of publicity as a form of property also suggests that new property rights may be more easily constructed than some have thought, and that property is more like a spectrum than an on-off switch. Additionally, classifying publicity rights as property supports the view of some scholars that the central defining feature of property is the right to exclude. This may explain the long-time inclination to treat rights to a person’s name, likeness, and voice as property. But by treating them as property, we should not endorse the importation of the broader law of “things” to the unique context of personhood as property.

Keywords: right of publicity, property, jurisprudence, private law, margaret radin, personhood, personality rights, postmortem rights, privacy, descendabilty, intellectual property