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Disciplining the Right of Publicity’s Nebulous First Amendment Defense with Teachings from Trademark Law
2016
Details
Title
Disciplining the Right of Publicity’s Nebulous First Amendment Defense with Teachings from Trademark Law
Author
Yeo, Wee Jin
Item Type
Journal article
Description
42 pages
ISSN
0736-7694
Summary
Academic commentators, practitioners and students alike have written a flurry of articles on the First Amendment defense in right of publicity law, as courts cannot seem to agree on the appropriate balancing test that should be used to weigh celebrities’ publicity rights against the public’s rights to use celebrity personas as communicative tools. Various tests have been proposed as the panacea, but are ultimately unsatisfactory, due to inadequacies that prevent them from striking a normatively desirable balance. This Article suggests that the core normative justification behind the right of publicity is the prevention of unjustenrichment. Thus, following recent developments in trademark law evincing the courts’ unwillingness to allow free riders to reap what they have not sown, limiting doctrines in trademark law may provide helpful guidance in the right of publicity context. Specifically, it is proposed that a principled First Amendment defense may be fashioned by adopting a modified version of trademark law’s First Amendment balancing test.
Supplement Note
Published in : Cardozo Arts & Entertainment Law, vol. 34, no. 2
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Published
[New York City, New York] : Yeshiva University Benjamin N. Cardozo School of Law, 2016.
Language
English
Record Appears in
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