Monday, April 27, 2009
The right of publicity is an enigmatic property right. Its many critics argue that it should not be a property right at all, because (1) it is unnecessary to stimulate the pursuit of fame; (2) unneeded to manage the value of publicity; and (3) undeserved in any recognized moral sense. Yet, this ostensibly persuasive critique has had little practical impact. The right of publicity today is stronger than ever.
This article contends that the prevailing critique of the right of publicity has failed to influence the courts in large part because each quiver in its arsenal would be just as fatal were it aimed at any form of property right. To justify denying property-right status to the right of publicity, one needs to distinguish that right from other types of property. Because the existing critique applies across the board, it cannot justify singling out the right of publicity.
In rejecting the broad critique and accepting the right of publicity as a valid property right, many courts have been nonetheless uncomfortable with the right's broad reach. The prevailing view has been that it restricts too much speech, and must be limited to conform to the First Amendment. This approach has been criticized for being insufficiently sensitive to speech interests, because courts are incompetent to judge the social value of particular forms of speech. This article contends that attempting to shape a property right with reference to free speech interests is doomed to fail, because individuals generally have no right to use the property of another to speak. If publicity is property, then it will restrain speech interests just as other forms of property do. After all, you cannot lawfully set up a soap box in my front yard.
If one accepts the right of publicity as a valid property right, competition policy is the most fruitful ground on which to restrict publicity rights. Unlike free speech interests, competition policy does limit the scope of property rights, and courts are fully competent to judge the competitive effects of recognizing publicity rights in different contexts. To the extent that recognizing a right of publicity would restrain competition and create market power in a celebrity, a court would be fully justified in limiting the celebrity's publicity rights, just as antitrust law generally limits a monopolist's other property rights. Where a celebrity has no market power, by contrast, publicity rights would be fully enforceable. Applying this approach would (1) validate the results in a number of controversial right-of-publicity cases; (2) compel a different result in a few cases; and (3) more effectively justify court decisions in areas such as advertising, news reporting, and biography, that have been relatively uncontroversial.
Download the paper from SSRN here.