Rothman on the Right of Publicity

Jennifer Rothman (Loyola LA) has posted The Inalienable Right of Publicity (Georgetown Law Journal) on SSRN.  Here's the abstract:

This article challenges the conventional wisdom that the right of publicity is universally and uncontroversially alienable. Courts and scholars have routinely described the right as a freely transferable property right, akin to patents or copyrights. Despite such broad claims of unfettered alienability, courts have limited the transferability of publicity rights in a variety of instances. No one has developed a robust account of why such limits should exist or what their contours should be. This article remedies this omission and concludes that the right of publicity must have significantly limited alienability to protect the rights of individuals to control the development and use of their own identities. In the process of doing so, the article presents a major shift in right of publicity law from thinking about publicity-holders to thinking about “identity-holders.” The distinction between identity-holders and publicity-holders is a crucial one, but one that has not been made elsewhere. Without making such a distinction, it is impossible to describe (let alone justify) an alienable right of publicity.

The article presents a major reconceptualization of the right of publicity and suggests new ways of thinking about the right’s purported split from the right to privacy, as well as the competing interests of the public. It also lends insights for other areas of the law in which we struggle with what we mean by property and the appropriate nature of alienability, such as sales of organs, blood, babies, personal data, and moral rights.

Steve Clowney