Who Put the Right in the Right of Publicity?

Who Put the Right in the Right of Publicity?

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“Newbom” common law causes of action, like children, are infinitely lovable and promising at birth, but as their characters develop with age, their appeal may lessen and their apparent potential may never be achieved. At first blush, the right of publicity seems not to have followed that sad and common path; barely half a century old, it is widely credited with exceeding even optimistic expectations for its future. The publicity right, for those who are unfamiliar with this area of tort law, creates a property interest in elements of personal identity, allowing individuals or their successors and assignees to exert legal control over when, whether and how their various personal characteristics (at a minimum, their names and actual likenesses) can be used by others for commercial ends. Some measure of disagreement exists among its advocates about the appropriate profile of the right—for example, how long it should last, or the range of attributes and associations that should be protected by it—and doubts are sporadically voiced about whether or not federal copyright preemption doctrine acts as a significant limit on the ability of states to offer this kind of protection. These concerns, however, are marginal blips that seem not to disturb the otherwise serene sense among a significant cross-section of the legal community—judges, legislators, and academics alike–that publicity rights are a valuable addition to the law and an accepted part of our legal landscape. The development of a publicity right has occurred over a few decades. As recently as 1950, “personality” (that is, some cluster of identifying personal characteristics) was protected, if at all, solely as a personal interest subsumed under the law of privacy. The plaintiff, to state a case, had to show that her name or likeness had been appropriated without her consent and used for commercial purposes by the defendant. But the presumed gravamen of the harm was not a deprivation of property; rather, it was the desire of the plaintiff not to receive this form of public exposure. Only the affected individual could sue, and the duration of the cause of action was coextensive with the duration of the claimant's life. Today, however, personality has become a recognized commodity—something to be exploited (or not) according to the preference of the subject or of those who inherit or buy her rights. As the previous sentence suggests, these personal attributes frequently continue as marketable goods long after their source is dead and buried. Personality as a valid form of property has been recognized by the American Law Institute in its RESTATEMENT (THIRD) OF UNFAIR COMPETITION and, recently, it has even been touted as a possible candidate for federal statutory protection. That is not to say that these developments have generated no protesters (I admit at the outset to being one of them). Critics and skeptics, however, are frequently written off by those who believe in publicity rights as a fringe group of cranks and ideologues whose objections are difficult to take seriously. One supporter of the tort, for example, expressed his annoyance at current scholarship critical of publicity rights in the following terms: “It has recently been suggested that ‘the fundamental case for a right of publicity seems to be undergoing a critical reappraisal in the United States.’ It would perhaps be more accurate to say that a very few voices have been raised questioning the legitimacy of the right….[T]he difficulty with this attempt to reopen that which has been rather clearly settled is that the current academic attempt to destroy the right rests at best on marginal issues not seriously implicated by the right of publicity as it has been developed and at worst on an ad hoc and self-referential ‘deconstruction’ of judicial thinking. Indeed, much of the criticism has its roots in a more general Critical Legal Studies attack on intellectual property . . ., as well as in an earlier work that viewed ‘the growth of intellectual property [as] uncontrolled to the point of recklessness’….” Another engaged in verbal headscratching over what would prompt a prominent federal judge, Alex Kozinski, to write a scathing and highly publicized dissent attacking the tort in a recent case. Ultimately, this commentator decided that he had to write off the Judge's ire as a reflection of his personal and idiosyncratic view of the first amendment. Judge Kozinski, the commentator noted, does not believe that commercial speech should be subject to less favorable treatment under the constitution than political commentary. “This view is not the law,” the writer concluded, “and I personally doubt that it will ever be the law.” Frankly, it seems to me to be a little premature to describe the character of the right of publicity as “established” or to conclude that its critics are ideologues—either lacking in sufficient discernment to be able to distinguish marginal from crucial issues, or enthralled by wrongheaded visions of the first amendment. For one thing, a glance through a recent, comprehensive survey of the law in this area indicates that claims that the shape and substance of publicity rights are “clearly settled” cannot be substantiated. Many states have rarely or never entertained cases of any kind involving commercial appropriations of identity, and have, therefore, had little opportunity to think through the kind and extent of protection they want to offer plaintiffs in this area. Furthermore, although it has been estimated that as many as half the states in the United States recognize a right of publicity, a careful head count reveals that only about a dozen have taken unambiguous steps to create a true property right while most of the other continue to offer protections for personality that are either indistinguishable from, or actually still are governed by, the rules of the older privacy tort of commercial appropriation. 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.

Source Publication

Intellectual Property Rights: Critical Concepts in Law

Source Editors/Authors

David Vaver

Publication Date

2006

Volume Number

1

Who Put the Right in the Right of Publicity?

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