June 15, 2009
The First Amendment and the Right of Publicity
The right of publicity is a legal theory which enables individuals to protect themselves from unauthorized, commercial appropriations of their personas. Although the right of privacy and the right of publicity are similar in that both doctrines are aimed at controlling the extent to which one party can use the details of the life of another, they nonetheless have come to represent distinct legal theories. Publicity actions typically are regarded as the means of achieving compensation for the loss of financial gain associated with a defendant’s unauthorized appropriation. In contrast, the right of privacy continues to be regarded as the predicate for actions based on hurt feelings. The reasons for this distinction are partially attributable to the particular fact patterns in seminal cases as well as the result of the legal system’s failure to embrace a cohesive legal doctrine that affords individuals the ability to redress unauthorized appropriations of their identities involving both economic and reputational damage. Allowing the unauthorized use of an individual’s persona potentially poses the maximum harm when the persona is being appropriated in an objectionable context or for an objectionable purpose. In these instances, neither an award of injunctive relief nor monetary damages will erase the damage to human dignity which the persona perceives as having already been inflicted by virtue of the user’s unauthorized appropriation. No judicially mandated relief can eliminate the prior effects of the user’s objectionable public exposure of the persona. These are situations involving dignity based, as opposed to economically based, objections to the use. Notwithstanding the confusion between privacy and publicity, and between commercial and personal interests, the reality is that both celebrities and non-celebrities can bring actions based on the unauthorized use of their personas that involve dignity as well as economically based harms. Moreover, in the age of 'reality television' the line between celebrity and non-celebrity has become especially fuzzy. Today more so than ever before, an increasing number of ordinary people have the opportunity to garner their so-called 'fifteen minutes' of fame. Although there may be positive benefits to be derived by individuals from this exposure, one downside is that these 'short-term' celebrities also suffer an increased likelihood of being the subject of right of publicity violations generally and dignity based harms in particular. Much ink has been spilled over the intersection between the right of publicity and the First Amendment generally. To date, however, neither courts nor commentators have focused specifically on how the existence of a dignity based harm should impact the analysis in these cases and so this Essay attempts to open a dialogue on this point. For purposes of this work, I accept the right of publicity’s existence as a given, and therefore do not argue for or against the right. Instead, I propose a way of thinking about those publicity cases where damage to human dignity is a prime — or even the prime — concern of the plaintiff. Part I of this Essay initially examines the relationship between causes of action such as privacy, defamation and the right of publicity that can involve harm to the plaintiff’s dignity. It then explores how conflict can arise in connection with these types of claims and the First Amendment. Part II illuminates the current tests courts have used to determine how the right of publicity specifically should co-exist with the First Amendment, and concludes that none of these tests are suitable in the context of publicity claims involving dignity harms. Part III develops a more suitable framework for evaluating such claims.Download the article from SSRN here.
June 15, 2009 | Permalink
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