The right of publicity protects against
unauthorized appropriation of a person’s name, likeness, portrait,
picture, voice and other indicia of identity or persona.
Like other Intellectual
Property Rights (IPR), the right of publicity has the potential to shrink
both the public domain and the marketplace of ideas, thus preventing
the dissemination of informational and creative works.
Professor Leaffer laments that since the 1950’s, publicity rights “have
expanded to encompass not only name and likeness, but also anything
that vaguely relates to identity.”
The importance of publicity rights has only increased as society
has embraced the era of “the brand.” As Professor Kaytal explains,
“brands permeate the fabric of our lives—they help construct our
identities, our expressions, our desires, and our language.”31
Corporations seek to “become definable personalit[ies]” to combat the
“public perception of a corporation as a cold impenetrable entity. . .
.”
32 Professor Perzanowski notes that corporations “take branding
seriously” as we might expect they would given the billions expended
and the cumulative $2 trillion value of the top one hundred global
brands.33
Following that trend, individuals—stars—have now become
brands in and of themselves. Professor Tan notes that a consensus
exists “amongst cultural studies scholars that celebrities are semiotic
signs, as much as they are commodities possessing intrinsic economic
value.”34 Viewing identity and indicia of identity such as football
player numbers, sport and entertainment stars now aggressively
pursue transgressors in the same way trademark owners of famous
marks do. Whether there is true social benefit accruing back to “we
the people” to any of this conduct under color of law is quite another
question.The “branding” of personality also begs the question—if
celebrities really are “brands,” why do we need a right of publicity?
Trademark law, after all, fully protects—some would say
overprotects—brands, and virtually every celebrity right of publicity
case is also a trademark infringement caseWhen Kim Kardashian
recently sued Old Navy for use of a Kardashian “look-a-like” in an
Old Navy ad, her complaint stressed not that her likeness was
appropriated, but that the Old Navy ad “falsely represents that Kim
Kardashian sponsors, endorses or is associated with [Gap Inc.].”35
What is the harm to Kardashian? That she lost an opportunity to
reap the financial benefit of an Old Navy endorsement? That the Old
Navy ad would undermine her other ventures, including her
endorsement deal with Sears?36 According to a Kardashian “insider,”
plaintiff brought suit because “she’s a businesswoman who has to
protect her brand.”37 Brand protection, though, is not a cause ofaction. It has clearly become a business strategy, using likeness
appropriation and trademark infringement as a guise.
What bothers us in many of these cases is that the celebrity
seems to overreach by claiming property in identity that causes
neither economic harm nor harm to personality. As Professors Ochoa
and Welkowitz cogently demonstrate, publicity rights “create difficult
problems for freedom of expression.”43 Whether it is J. Lo, Lindsay or
Spike, it looks like celebrities are attempting to cash in on a
shakedown. In the domain name context, celebrity figures do not
necessarily seek compensation, but rather the right “to prevent others
from profiting from their name online.”44 Celebrity representatives
(and yes, I was one, once upon a time) see things differently, defining
the right of publicity in essence as protection “against other people
making money off you without your permission.”45
As attorney Stan Lee notes, in a society that so values celebrity,
the “question is who should be able to make money off that
celebrity. . . the individual or his or her family?”46 Attorney Lee
concludes that whether it is, “a small entrepreneur selling T-shirts or a
multibillion conglomerate. . . [i]t ought to be the individual.”47
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