Disciplining the Right of Publicity’s Nebulous First Amendment Defense with Teachings from Trademark Law

Disciplining the Right of Publicity’s Nebulous First Amendment Defense with Teachings from Trademark Law

Journal article

42 pages

0736-7694

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.

Published in : Cardozo Arts & Entertainment Law, vol. 34, no. 2

[New York City, New York] : Yeshiva University Benjamin N. Cardozo School of Law, 2016.

eng