Document Type

Article

Publication Title

DePaul Journal of Arts & Entertainment Law

Abstract

Although winning a place in the Restatement (Third) of Unfair Trade Practices will undoubtedly push the tort toward more uniform definition and broader adoption (state courts and legislators alike having a tendency to treat restatements as if they were a kind of ur-law), it can nevertheless be argued that reports of publicity as established law, like reports of Mark Twain's death, have been greatly exaggerated. What is also exaggerated, I would argue, is the characterization of the questions that persist about the value and validity of the publicity right as the rearguard indulgence of a few cranky academics and an eccentric judge or two. This branch of tort law, celebrated though it may be by many, continues to bear comparison for a respectable minority to the character of the questionable Dr. Fell -- the one who was, as you may remember, simply unlikable. But whereas the poet could not tell us what was so disturbing about Dr. Fell, critics of the right of publicity have identified many reasons that the publicity tort leaves a bad aftertaste. Considerations of time, space and the patience of my readers do not permit a thorough reexamination of those reasons here. Rather, I would like to focus on one particular issue that has not, in my view, received adequate consideration by those on either side of the debate. Much of the law of publicity seems to hinge on the bet, expressed by the second of the two passages quoted earlier in this piece, that Judge Kozinski's view of the commercial speech doctrine is not and never will be the law. If that bet were to be lost, and I would argue that, to a substantial extent, it has been, then the foundations of a right of publicity would have to be rethought. If commercial speech were to receive the same level of protection as a novel or a film, or even something close to it, the judiciary would be required to subject publicity rights to a level of rigorous scrutiny that, up until now, they have largely escaped. The result, I suspect, could reduce much, although certainly not all, of the current law to the status of roadkill on the path of legal history. To defend this proposition, however, a bit of preliminary discussion may be useful.

First Page

35

Volume

9

Publication Date

1998

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