Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Wednesday, May 18, 2016

Blank on Media Warfare, Propaganda, and the Law of War

Laurie R. Blank, Emory University School of Law, is publishing Chapter 7: Media Warfare, Propaganda and the Law of War in Soft War: The Ethics of Unarmed Conflict (2016). Here is the abstract.

In today’s 24/7 media and Internet culture, warfare does not take place only in the kinetic arena of the battlespace. Airstrikes, artillery barrages and infantry maneuvers are accompanied by equally intense debates and discourse in the media about the legality and legitimacy of military action, with allegations of war crimes and justifications for attacks flying as quickly as drone strikes. With the involvement of international, regional and national courts, commissions of inquiry, other judicial and quasi-judicial entities — and, perhaps most of all, the court of world opinion — this battle of words can often seem to be as important as military capabilities. Numerous factors form, sway and cement that public opinion, including the efforts of militaries and armed groups to control information flows and of journalists, advocacy groups, fact-finding missions and ordinary civilians to seek, publicize and comment on information. This complex mix leads to a combustible arena of media warfare that has significant consequences not only for the way wars are fought and won, but for the legal framework that governs conflicts. This chapter explores how propaganda and media warfare intersect with the international law framework governing conflict, focusing on how information operations and media coverage link back to legal compliance — specifically claims of law violations or compliance — and legitimacy. In essence, the information battlespace has a significant effect on the application and interpretation of the law of armed conflict, including the very definitions that form the heart of the legal framework. Media coverage is an essential tool for the protection of persons and the enforcement of legal and moral norms At the same time, in order to preserve LOAC’s principles and processes, it is helpful to understand how the two interrelate and, in particular, how media coverage’s impact on public discourse can have significant and problematic consequences for the interpretation and development of LOAC.

Download the chapter from SSRN at the link.

May 18, 2016 | Permalink

Tuesday, May 17, 2016

de Mars and O'Callaghan on Privacy and Search Engines: Forgetting or Contextualizing?

Sylvia de Mars, Newcastle University Law School, and Patrick O'Callaghan, University College Cork, School of Law, have published Privacy and Search Engines: Forgetting or Contextualizing? at 43 Journal of Law and Society 257 (2016). Here is the abstract.

This article considers the much‐criticized ‘right to be forgotten’ in the context of the European Court of Justice’s judgment in the Google Spain case. It defends the ‘right to be forgotten’ as a metaphor that can provide us with a better understanding of the particular privacy concerns of the search‐engine age and their interaction with the freedom to access information, and draws on Goffman’s idea of ‘information games’ and Nissenbaum’s theory of ‘contextual integrity’. While supporting the principles that underpin the judgment, the article rejects the Court’s binary approach of ‘forgetting’ versus ‘remembering’ personal information. Instead, it argues that the EU legislator should introduce more nuanced means of addressing modern privacy concerns. By establishing two remedies – ‘delisting’ or ‘reordering’, depending on the nature of the information – online information flows can be adjusted to preserve both the right to privacy and the freedom to access information in more contextually appropriate ways.

The full text is not available from SSRN.

May 17, 2016 | Permalink

Regan, Bennett, and Bayley on the Protection of Privacy Rights in Canada and the United States

Priscilla M. Regan, George Mason University, Department of Public and International Affairs, Colin Bennett, University of Victoria, and Robin Bayley, Linden Consulting, have publishing If These Canadians Lived in the United States, How Would They Protect Their Privacy? The Functional Equivalence of Privacy Redress Mechanisms in Canada and the US (to be presented at the 2016 Privacy Law Scholars Conference, George Washington University, June 2-3, 2016). Here is the abstract.

Recent commentary has contended that, despite the fact that the U.S. Does not have a comprehensive data protection statute nor a data protection authority, the entire regime for the protection of privacy is essentially and functionally equivalent to those in other advanced democratic states. We subject that hypothesis to empirical examination by investigating seven actual complaints and investigations conducted under the Canadian Personal Information Protection and Electronic Documents Act (PIPEDA). These are real cases brought by real individuals. In each case, we ask the question, if these same fact situations occurred in the U.S. How would these individuals try to advance their privacy rights and seek redress? We examine cases from different sectors: credit reporting, insurance, online advertising, online dating, banking, hotels and cellular communications. The cases are not representative. Nevertheless, our results highlight the advantages of a single point of contact, a comprehensive legal framework, and of a system that relies less on litigation.

Download the paper from SSRN at the link.

May 17, 2016 | Permalink

Monday, May 16, 2016

Gannett Makes Higher Offer For Tribune Company

The Gannett Company has raised its offer for the Tribune Publishing Company to $864 million, according to the Hollywood Reporter. The Tribune owns several major dailies, including the L. A. Times and the Chicago Tribune. More here from THR.

May 16, 2016 | Permalink

Kitrosser on the Special Value of Public Employee Speech

Heidi Kitrosser, University of Minnesota, Twin Cities, School of Law, is publishing The Special Value of Public Employee Speech in the 2015 Supreme Court Review. Here is the abstract.

In this article, I use the 2014 decision of Lane v. Franks as a jumping off point to revisit the rule of Garcetti v. Ceballos, that speech conducted pursuant to one’s public employment is unprotected by the First Amendment. I explain that Garcetti is emblematic of the Supreme Court’s failure to dig beneath the surface of its own long-standing acknowledgment that public employee speech holds special value. If one tunnels into that subterrane, one finds that the value of public employee speech is a function not just of content, but of form. Public employees play a special role under the First Amendment by virtue of their privileged access both to information and to communication channels for conveying it. The special communication channels to which employees have access – including internal channels – can be uniquely effective in supporting accountability and the rule of law, and thus in fulfilling core free speech values. I consider how a fuller conception of special value – as well as a more sharply defined government interest in limiting employee speech – ought to impact the doctrine of public employee speech. I propose that, where work product speech can confidently be identified, courts should consider whether employees were disciplined based on a genuine, not pretextual assessment of work product quality. Crucially, in cases where employees were hired to render independent professional judgments, disappointment with those judgments, not because they reflect low quality, but because they are politically or personally inconvenient for employers, should not be deemed quality-based assessments. Only disciplinary actions based on quality-based assessments should be exempt from further scrutiny. As a second-best, but perhaps more realistic near-term alternative, I also consider means to limit Garcetti’s reach.

Download the article from SSRN at the link.

May 16, 2016 | Permalink

Ricketson and Ginsburg on Intellectual Property in News

Sam Ricketson, Melbourne Law School, and Jane C. Ginsburg, Columbia Law School, are publishing Intellectual Property in News? Why Not? in Research Handbook on Intellectual Property in Media and Entertainment (Sam Ricketson and Megan Richardson, eds., Edward Elgar, 2016) (forthcoming). Here is the abstract.

This Chapter addresses arguments for and against property rights in news, from the outset of national law efforts to safeguard the efforts of newsgathers, through the various unsuccessful attempts during the early part of the last century to fashion some form of international protection within the Berne Convention on literary and artistic works and the Paris Convention on industrial property. The Chapter next turns to contemporary endeavors to protect newsgatherers against “news aggregation” by online platforms. It considers the extent to which the aggregated content might be copyrightable, and whether, even if the content is protected, various exceptions set out in the Berne Convention permit its unlicensed appropriation.

Download the essay from SSRN at the link.

May 16, 2016 | Permalink

Friday, May 13, 2016

Perzanowski and Hoofnagle on Consumer Confusion Over the "Buy Now" Link for Online Purchase of Digital Goods

Aaron Perzanowski, Case Western Reserve University School of Law, and Chris Jay Hoofnagle, University of California, Berkeley, School of Information, and University of California, Berkeley, School of Law, are publishing What We Buy When We "Buy Now" in volume 165 of the University of Pennsylvania Law Review. Here is the abstract.

Retailers such as Apple and Amazon market digital media to consumers using the familiar language of product ownership, including phrases like “buy now,” “own,” and “purchase.” Consumers may understandably associate such language with strong personal property rights. But the license agreements and terms of use associated with these transactions tell a different story. They explain that ebooks, mp3 albums, digital movies, games, and software are not sold, but merely licensed. The terms limit consumers' ability to resell, lend, transfer, and even retain possession of the digital media they acquire. Moreover, unlike physical media products, access to digital media is contingent—it depends on shifting business models, the success and failure of platforms, and often on the maintenance and availability of DRM authentication systems years after the consumer clicked “buy now.” This article presents the results of the first-ever empirical study of consumers' perceptions of the marketing language used by digital media retailers. We created a fictitious Internet retail site, surveyed a nationally representative sample of nearly 1300 online consumers, and analyzed their perceptions through the lens of false advertising and unfair and deceptive trade practices. The resulting data reveal a number of insights about how consumers understand and misunderstand digital transactions. A surprisingly high percentage of consumers believe that when they “buy now,” they acquire the same sorts of rights to use and transfer digital media goods that they enjoy for physical goods. The survey also strongly suggests that these rights matter to consumers. Consumers are willing to pay more for them and are more likely to acquire media through other means, both lawful and unlawful, in their absence. Our study suggests that a relatively simple and inexpensive intervention—adding a short notice to a digital product page that outlines consumer rights in straightforward language—is an effective means of significantly reducing consumers’ material misperceptions. Sales of digital media generate hundreds of billions in revenue, and some percentage of this revenue is based on deception. Presumably, if consumers knew of the limited bundle of rights they were acquiring, the market could drive down the price of digital media or generate competitive business models that offered a different set of rights. We thus turn to legal interventions, such as state false advertising law, the Lanham Act, and federal unfair and deceptive trade practice law as possible remedies for digital media deception. Because of impediments to suit, including arbitration clauses and basic economic disincentives for plaintiffs, we conclude that the Federal Trade Commission (FTC) could help align business practices with consumer perceptions. The FTC’s deep expertise in consumer disclosures, along with a series of investigations into companies that interfered with consumers’ use of media through digital rights management makes the agency a good fit for deceptions that result when we “buy now.”

Download the article from SSRN at the link.

May 13, 2016 | Permalink

Wednesday, May 11, 2016

Tushnet on the Coverage/Protection Distinction in the Law of Freedom of Speech

Mark Tushnet, Harvard Law School, has published The Coverage/Protection Distinction in the Law of Freedom of Speech – An Essay on Meta-Doctrine in Constitutional Law. Here is the abstract.

The distinction between the First Amendment’s coverage – those human activities the regulation of which is evaluated by invoking the First Amendment – and the protection it affords – the conditions under which a regulation violates the First Amendment – has been an important component of the Amendment’s doctrinal architecture. Recent Supreme Court decisions place significant pressure on the coverage/protection distinction. This Essay examines those cases and the ways in which intuitively attractive results might be precluded by abandoning the distinction. Salvaging those results is possible, but only by deploying analytical moves that run athwart a constitutional “meta-doctrine,” which I call the “too much work” principle. In addition to contributing to understanding the coverage/protection distinction and the Court’s recent decisions, the Essay explains the role that meta-doctrines play in constitutional architecture more generally.

Download the article from SSRN at the link.

May 11, 2016 | Permalink

Tuesday, May 10, 2016

Subotnik on the Copyright Interests of Photographic Subjects

Eva E. Subotnik, St. John's University School of Law, has published The Author Was Not an Author: The Copyright Interests of Photographic Subjects from Wilde to Garcia at 39 Columbia Journal of Law & the Arts 449 (2016). Here is the abstract.

Toward the end of his dissent in Garcia v. Google, Judge Alex Kozinski remarked that “[w]hen modern works, such as films or plays, are produced, contributors will often create separate, copyrightable works as part of the process.” Judge Kozinski’s characterization of plays (or even films) as “modern works” opens the door to an examination of that claim with respect to another genre of modern work: the photograph. This essay focuses on the treatment of claimed authorial contributions by photographic subjects to the photographs in which they are portrayed. It traces the analysis of this issue from the early photography cases (and provides the relevant litigated images) to present times. What emerges is a forceful line of precedent that largely did not consider, accept, or emphasize a photographic subject’s authorial contributions to a finished photographic image. Coming full circle, I argue that longstanding judicial instincts on this front may help explain the outcome in the Garcia case.

Download the article from SSRN at the link.

May 10, 2016 | Permalink

Samuelson on Copyright's Merger Doctrine

Pamela Samuelson, University of California, Berkeley, School of Law, is publishing Reconceptualizing Copyright's Merger Doctrine in volume 63 of the Journal of the Copyright Society of the U.S.A. Here is the abstract.

Under the merger doctrine of U.S. copyright law, courts sometimes find original expression in a work of authorship to be “merged” with the idea expressed, when that idea is incapable of being expressed, as a practical matter, in more than one or a small number of ways. To be true to the principle that copyright law does not extend its protection to ideas, courts have held in numerous cases that the merged expression is unprotectable by copyright law. This Article, which memorializes the 2015 Brace Lecture, identifies and dispels eight myths about the merger doctrine, including the myth that the doctrine was borne in the Supreme Court’s Baker v. Selden decision. It also discusses merger in relation to other copyright doctrines, such as scenes a faire, originality, and the exclusion of processes embodied in copyrighted works. Finally, it considers various functions of the merger doctrine, such as averting unwarranted monopolies, policing the boundaries between copyright and patent law, and enabling the ongoing progress of knowledge.

Download the article from SSRN at the link.

May 10, 2016 | Permalink

Monday, May 9, 2016

Griffiths on the UK Defense for Caricature, Parody, or Pastiche

Jonathan Griffiths, Queen Mary University of London School of Law, is publishing Fair Dealing after Deckmyn - The United Kingdom's Defence for Caricature, Parody or Pastiche in Research Handbook on Intellectual Property in Media and Entertainment (M. Richardson and S. Ricketson,eds. Edward Elgar, 2017). Here is the abstract.

Parodies present a dilemma for copyright law. They often reproduce and adapt existing copyright works. However, they also play a prominent role in contemporary cultural and media practice and, in some instances, serve important social and political goals. Jurisdictions around the globe have attempted to resolve this dilemma by permitting parodists to use copyright works within certain limits. Until 2014, the United Kingdom was unusual in having no effective safety valve for parody. This situation was often lamented and, finally, in October 2014, a new s 30A permitting fair dealing with copyright works for the purposes of caricature, parody or pastiche was inserted into the Copyright Designs & Patents Act 1988. By coincidence, shortly before s 30A came into force, the Grand Chamber of the European Court of Justice (ECJ) handed down its judgment in (C-201/13) Deckmyn v Vandersteen. The Judgment in that case provides guidance on the meaning of “caricature, parody or pastiche” within the European copyright acquis and requires member state courts to apply domestic parody exceptions in a manner that fairly balances competing fundamental rights. Deckmyn will thus have a significant impact on UK courts’ interpretation of s 30A. This chapter examines the scope of the United Kingdom’s new parody exception in the wake of Deckmyn and highlights a number of interpretative challenges to which that case has given rise.

Download the essay from SSRN at the link.

May 9, 2016 | Permalink

Prince Harry on the Media

Prince Harry pushes back against media intrusion into his private life. “Sadly, that line between public and private life is almost non-existent.” Roy Greenslade discusses here.

May 9, 2016 | Permalink

Thursday, May 5, 2016

Ombelet, Kuczerawy, and Valcke on Supervising Automated Journalists in the Newsroom: Liability for Algorithmically Produced News Stories

Pieter-Jan Ombelet, KU Leuven, KU Leuven Centre for IT & IP Law (CiTiP), Aleksandra Kuczerawy, KU Leuven Centre for IT & IP Law (CiTiP), and Peggy Valcke, KU Leuven,Faculty of Law; KU Leuven, Interdisciplinary Centre for Law and ICT (ICRI); European University Institute, Robert Schuman Centre for Advanced Studies (RSCAS), are publishing Supervising Automated Journalists in the Newsroom: Liability for Algorithmically Produced News Stories in Revue du Droit des Technologies de l'Information (Summer 2016). Here is the abstract.

Algorithmic processes that convert data into narrative news texts allow news rooms to publish stories with limited to no human intervention. The new trend creates many opportunities, but also raises significant legal questions. Aside from financial benefits, further refinement could make the smart algorithms capable of writing less standard, maybe even opinion, pieces. The responsible human merely needs to define clear questions about what the algorithm needs to discuss in the article and in what manner. But how does it square with the traditional rules of publishing and editorial control? This working paper analyses the question of authorship for algorithmic output and the liability issues that could arise when the algorithmic output includes inaccurate, harmful or even illegal content. The analysis of authorship and liability issues is performed by assessing the existing relevant Belgian legislation and case law regarding copyright and press liability. Furthermore, the paper answers the question as to how publishers should prevent the creation of inaccurate content by the algorithms they use. Parallels are drawn with the judgement of the European Court of Human Rights in Delfi v. Estonia. The paper assesses whether an obligation of a responsible human to monitor all output of the automated journalist is feasible, or rather defeat the purpose of having the smart algorithms at his/her disposal.

Download the article from SSRN at the link.

May 5, 2016 | Permalink

Denicola on Volition and Copyright Infringement

Robert Denicola, University of Nebraska College of Law, is publishing Volition and Copyright Infringement in volume 37 of the Cardozo Law Review. Here is the abstract.

When should Internet service providers or other system owners be directly liable for copyright infringements committed by the users of their systems? In a 2014 dissent in American Broadcasting Cos. v. Aereo, Justice Scalia sought an answer to that question in “a simple but profoundly important rule” of copyright law: “A defendant may be held directly liable only if it has engaged in volitional conduct that violates the Act.” Scalia’s “profoundly important rule,” however, is hardly an accepted bedrock of copyright law. As he himself admitted, the Supreme Court had never previously used the word “volition” in the context of copyright, nor have a majority of the federal courts of appeals. The leading treatise on copyright law calls the “volition” element “revolutionary.” It is a startling debate, coming as it does more than two centuries after Congress first imposed liability for copyright infringement. “Volition” in copyright law has come to mean much more than the traditional inquiry into the voluntariness of a defendant’s conduct. It is best understood as requiring a connection between the service provider and the infringed work that is sufficiently robust to allow the provider to control the infringement without the necessity of monitoring the conduct of third-party users. The doctrine serves a basic channeling function. If the only way for a service provider to avoid infringement is to monitor and police the conduct of third parties, the provider’s potential liability for any resulting violations should be determined not on the basis of principles governing direct liability but instead under the rules that determine secondary liability for infringements committed by others.

Download the article from SSRN at the link.

May 5, 2016 | Permalink

Podszun on Theater Directors in Conflict with German Copyright Law: The Example of Frank Castorf's "Baal"

Rupprecht Podszun, University of Bayreuth, Max Planck Institute for Innovation and Competition, has published Frank Castorf's 'Baal' – Director's Theater on Trial: Theater Directors in Conflict with Copyright Law in Germany. Here is the abstract.

In 2015, the Munich District Court dealt with the staging of the play "Baal" by Bertolt Brecht in Munich Residenztheater. The heirs of the author claimed that the director of the play, Frank Castorf, a giant of German "Regietheater" (Director's Theater) had taken too much liberty in working with the text instead of staging a faithful interpretation. The case stirred uproar in Germany and shed light on the relationship of copyright laws and postmodern theater interpretations. This lawsuit (settled after all) concerning a director’s creative freedom serves as the starting point in this paper to examine the relationship between copyright law and Regietheater in German theater and legal practice. Part I retraces the conflict between the Residenztheater and the Brecht-estate giving an account of the litigation. In Part II, the topic is broadly positioned in the field of copyright law - a field of law rewarding creativity and individuality of authors. In Part III, the treatment of director’s theater in the practice of German courts will be retraced. For this, the case law is reviewed. Part IV provides a perspective on related techniques from other cultural branches (likes sampling, mash-ups or hacking), and it explains two seminal judgments by German courts, "Metall auf Metall" and "Germania 3". Finally, Part V concludes with thoughts on Director's Theater and Castorf's role in postmodern theater.

Download the article from SSRN at the link.

May 5, 2016 | Permalink

Wednesday, May 4, 2016

Corbin on the Free Speech Claims of Wedding Vendors

Caroline Mala Corbin, University of Miami School of Law, is publishing Speech or Conduct: The Free Speech Claims of Wedding Vendors in volume 65 of the Emory Law Journal (2016). Here is the abstract.

As LGBT rights have expanded, so have claims by businesses that public accommodation laws banning sexual orientation discrimination violate their free speech rights. In particular, wedding vendors such as bakers and photographers claim that forcing them to serve LGBT customers compels them to express approval of same-sex marriage — something contrary to their religious beliefs. The question addressed by this Article is not whether public accommodations laws ultimately violate the Free Speech Clause, but whether they even require free speech review. In other words, is baking a cake for a same-sex wedding or photographing the bride-and-bride “speech” triggering free speech scrutiny? Both bakers and photographers raise compelled expressive conduct claims, a little analyzed category. Given the context of a business open to the public selling a service, the bakers’ claim that baking a cake is expressive conduct ought to be rejected. The photographers’ claim is more complicated: because photography is a traditional mode of communication, the claim raises the additional question of whether conduct involving words or images necessarily amounts to speech that is covered by the Free Speech Clause.

Download the article from SSRN at the link.

May 4, 2016 | Permalink

Frye, Ryan, and Runge on Law Journal Copyright Practices

Brian L. Frye, University of Kentucky College of Law, Christopher J. Ryan, Vanderbilt University Peabody College, Higher Education Law & Policy, and Franklin L. Runge, University of Kentucky College of Law, have published An Empirical Study of Law Journal Copyright Practices. Here is the abstract.

This article presents an empirical study of the copyright practices of American law journals in relation to copyright ownership and fair use, based on a 24-question survey. It concludes that many American law journals have adopted copyright policies that are inconsistent with the expectations of legal scholars and the scope of copyright protection. Specifically, many law journals have adopted copyright policies that effectively preclude open-access publishing, and unnecessarily limit the fair use of copyrighted works. In addition, it appears that some law journals may not understand their own copyright policies. This article proposes the creation of a Code of Copyright Best Practices for Law Journals in order to encourage both open-access publishing and fair use.

Download the article from SSRN at the link.

May 4, 2016 | Permalink

Florida Court Reverses Injunction For Cyberstalking

A Florida appellate court has reversed a trial court's order enjoining an appellant from cyberstalking under Florida's statute Section 784.0485(1) which defines cyberstalking as "engag[ing] in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial eomtional distress to that person and serving no legitimate purpose." The appellant, Randy Scott, had sent numerous emails about the appellee, Frederic Blum, and his family and others with whom he was associated to various persons. The court found that because Mr. Scott sent the emails to third parties rather than to Mr. Blum himself they were not directed specifically at him. Thus, Mr. Blum failed to establish that the emails met the definition of cyberstalking under the statute, even though the emails contained links to some materials that the court called "derogatory" and "potentially damaging to Mr. Blum's business and reputation." 

Said the court, "That the articles written by Mr. Scott contain false allegations or embarrassing information is not a basis for a cyberstalking injunction."


Read the entire ruling here.  The case is Scott v. Blum, Case No. 2D15-3412, Florida 2d District Court of Appeal, April 29, 2016.

Eugene Volokh discusses the case here for the Washington Post.

May 4, 2016 | Permalink

Friday, April 29, 2016

Wang on Law Enforcement Misappropriation of Press Identities In the Cyber Era

Andy Wang, United States Court of Appeals for the Fifth Circuit, has published Stealing Press Credentials: Law Enforcement Identity Misappropriation of the Press in the Cyber Era at 6 University of Miami National Security & Armed Conflict Law Review 25 (2015-2016). Here is the abstract.

Law enforcement agencies have long resorted to tricks and ruses to catch perpetrators of crimes. But this article examines the rise of a novel, and controversial, form of law enforcement trickery: the misappropriation of media and press identities. Specifically, newly declassified documents revealed that in 2007, undercover FBI agents, posing as employees of the Associated Press, created a fake AP article laced with malware and sent it to a suspect in order to uncover his identity and location. All this was done without the knowledge and consent of the AP. Media and press organizations around the country sounded alarms on the use of this tactic, belying the controversial nature of a government law enforcement agency misappropriating the entity of the so-called "free" press. But what legal standards are applicable to this case? And under such standards, did the FBI break the law while trying to enforce the law? Drawing upon applicable constitutional, statutory, and regulatory materials, this article analyzes the legality and constitutionality of such a tactic, examines its potential for use and abuse, and addresses its overall soundness in the cyber era.

Download the article from SSRN at the link.

April 29, 2016 | Permalink

Thursday, April 28, 2016

Weisbord on Copyright Holders, Publicity Rights Holders, and the First Amendment

Reid K. Weisbord, Rutgers Law School (Newark), is publishing A Copyright Right of Publicity in volume 84 of the Fordham Law Review (2016). Here is the abstract.

This Article identifies a striking asymmetry in the law’s disparate treatment of publicity-rights holders and copyright holders. State-law publicity rights generally protect individuals from unauthorized use of their name and likeness by others. Publicity-claim liability, however, is limited by the First Amendment’s protection for expressive speech embodying a “transformative use” of the publicity-rights holder’s identity. This Article examines for the first time a further limitation imposed by copyright law: when a publicity-rights holder’s identity is transformatively depicted in a copyrighted work without consent, the author’s copyright can produce the peculiar result of enjoining the publicity-rights holder from using or engaging in speech about her own depiction. This Article offers novel contributions to the literature on copyright overreach and: (1) identifies a legal asymmetry produced in the interplay of publicity rights, copyright law, and the First Amendment; (2) examines the burdens on constitutionally protected speech, autonomy, and liberty interests of publicity-rights holders when copyright law prevents or constrains use of their own depiction; and (3) outlines a framework for recognizing a “copyright right of publicity” to exempt the publicity-rights holder’s use from copyright infringement liability. Notably, this Article contributes uniquely to the literature by including a special first-person narrative from an internationally recognized celebrity whose persona was prominently depicted without prior notice or consent in a wide-release feature film.

Download the article from SSRN at the link.

April 28, 2016 | Permalink