The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The right of publicity is a law that few people outside of Hollywood know much about. Nevertheless, it is an increasingly important right in our digital age even when celebrities are not involved. The right of publicity provides a right to control uses of your identity, particularly your name, likeness and voice, and to stop others from using those without permission. The boundaries of these state right of publicity laws vary widely from state to state, with some limiting the claims to uses in advertising or on products, and others allowing almost any claim when the use is for the defendant's advantage. Some states limit claims only to those brought on behalf of the living, while others extend such rights after death.
In the book, I consider both the opportunities and risks that such right of publicity laws pose. I challenge the conventional, yet erroneous story of the right of publicity's development, and by doing so I provide direction on how to avoid the right's current dangerous path. The right of publicity in its current form jeopardizes the liberty of the very individuals that it is supposed to protect, while also interfering with free speech, and copyright law.
Today, I will share a short excerpt from the Introduction to the book that lays out some of the dangers and possibilities that the right poses, which I develop further in the book:
The right of publicity can be a valuable mechanism for addressing a variety of twenty-first century concerns about uses of people's images. But, despite the many benefits of having a right of publicity, its current incarnation comes with a host of dangers. The right of publicity limits what the public can say about public figures, even dead ones, and can bar the public from making sculptures, T-shirts, and posters honoring the recently deceased, such as Prince, Carrie Fisher, Robin Williams, and Muhammad Ali. It can block (and has blocked) the distribution and sale of busts of civil rights heroes, like Martin Luther King Jr. It has prevented video game makers from accurately depicting football players on historical team rosters, and television networks from using clips of their own broadcasts.
The right has led to liability for comic book authors who name characters after their favorite hockey players, and a payout by the nightly news for showing a fifteen-second clip of a performer at a local fair. The right has blocked television and movie producers from making or licensing derivative works based on their copyrighted works, such as action figures, movie posters, and robots that remind people of fictional characters. The right can stop businesses from accurately reporting that celebrities are wearing their clothes or handbags or jewelry, or eating in their restaurants.
Perhaps worst of all, under many state laws, the right of publicity is treated as a fully transferable property right, meaning that your own name, likeness, and voice could be sold, given away, or taken by someone else?forever. Some models, actors, and recording artists have assigned their rights to managers and companies that can now use their names and images without those individuals' additional permission, and even block them from appearing in public or making endorsements of their own choosing. The NCAA has claimed that student-athletes assigned (gave) their rights over their names and likenesses to the NCAA in perpetuity. Reality television producers have asked contestants to sign over their rights to their names and likenesses and life stories to the producers or production companies as a condition for participation on the shows.
Both Facebook and Twitter have claimed to be able to use your name and picture to endorse and advertise products, and even on products, like trading cards. Social media sites' ever-changing terms of service (which you agree to simply by continuing to use their services) could do far more than this if the right of publicity is transferable?Facebook could become the owner of your own name and image in all contexts, not just on its website. Parents could transfer their children's rights to their names and likenesses, and nothing in the law provides for children to get those rights back, even when they turn eighteen. For those with more lucrative public personalities, if the rights are transferable, then creditors and ex-spouses could take ownership over (at least part of) their identities and, as a result, control and monetize them, without regard to whether the underlying person would approve of such uses.
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The right of publicity need not be such a negative force?suppressing speech, blocking otherwise lawful uses of songs and fictional characters, forcing commercialization of the dead, and stripping people of their own identities. The right of publicity has an important and powerful core insight that originated with the right of privacy?that we should have some control over how others use our names and likenesses. But the right has lost its way, becoming a misunderstood, misshapen, bloated monster that has turned against even its initial masters and proponents. The right of publicity got off track when it transformed from a personal right, rooted in the individual (the "identity-holder"), into a powerful intellectual property right, external to the person, that can be sold or taken by a nonidentity-holding "publicity-holder."
These wrong turns by the right of publicity have been driven and continued by a host of mythologies that have sprung up surrounding both it and its predecessor, the right of privacy. This book challenges these common, though erroneous, stories about the two rights and by doing so provides a path to put the right of publicity back on course by reclaiming its origins in the right of privacy. In the process, the book provides an opportunity to reimagine both the right of publicity and the right of privacy for the Internet Age.
[Adapted from The Right of Publicity: Privacy Reimagined for a Public World by Jennifer E. Rothman, published by Harvard University Press. Copyright © 2018 by Jennifer E. Rothman. Used by permission. All rights reserved.]