Reviewing the law reviews.

• Author: Youngdale, Elizabeth M.

Law Review Highlights:

The right of publicity is a tort that was initially considered derivative of a person's right to privacy. Over the years, however, the tort has morphed into a right that is more prominently built on property interests. Two recent student articles look specifically at developments in the tort of the right of publicity.

In his note Goodbye, Norma Jean: Marilyn Monroe and the Right of Publicity's Transformation at Death, Michael Decker considers whether a right of publicity should exist after the death of the person whose image is at issue. (1) Using the case Shaw Family Archives Ltd. v. CMG Worldwide, Inc. (2) as a starting point, Decker argues that a postmortem right of publicity is unjustified. He asserts that, in fact, such an extension of the fight does more to protect the economic interests of licensing companies than it does the persona of the deceased celebrity or public figure. As a result he concludes that the result in Shaw, which does not allow for a right of publicity after death, should remain the standard.

A second student article, Image As Personal Property: How Privacy Has Influenced the Right of Publicity, (3) looks more closely at the transformation of the right of publicity from a privacy-based tort to a property-based tort. In his comment, Robert Thompson notes that in spite of this move toward the view of the right of publicity as a property fight over the years, recently there has been a trend in the courts that swings the pendulum back toward a more privacy-based justification for the right of publicity. While acknowledging some of the limitations of a strict property-based theory of publicity, the author argues that using privacy as the sole basis for the tort does not address other equally troubling concerns in applying the law. Because of the drawbacks of both theories when used separately, Thompson argues for a synthesis of these competing justifications when courts analyze the fight of publicity.

The following list is a selective bibliography of current law review literature thought to be of interest to civil defense counsel.

U.S. and International

Damages

Manuel A. Abdala, Key Damage Compensation Issues in Oil and Gas International Arbitration Cases, 24 AM. U. INT'L L. REV. 539 (2009).

Nada Alnajafi, Protecting the Past in the Future." How Copyright Is Wrong for Egypt and Why Other Sui Generis Laws May Help Protect the Pyramids and Other Cultural Antiquities, 56 J. COPYRIGHT Soc'Y U.S.A. 243 (2009).

Samuel R. Bagenstos & Margo Schlanger, Hedonic Damages, Hedonic Adaptation, and Disability, 58 DEF. L.J. 91 (2009).

Shireen A. Barday, Note, Punitive Damages, Remunerated Research, and Illegal Profession, 61 STAN. L. REV. 711 (2008).

Michael St. Patrick Baxter, The Application of [section] 502(b)(6) to Nontermination Lease Damages: To Cap or Not To Cap?, 83 AM. BANKR. L.J. 111 (2009).

W. Jonathan Cardi, Damages As Reconciliation, 42 LOY. L.A.L. REV. 5 (2008).

David A. Doellman, Note, Statutory Leapfrog." Compensatory and Punitive Damages Under the Retaliatory Provision of the ADA, 74 Mo. L. REV. 173 (2009).

Thomas Douglas, Medical Injury Compensation." Beyond "No-Fault," 17 MED. L. REV. 30 (2009).

Adri du Plessis, Pre-Contractual Misrepresentation, Contractual Terms, and the Measure of Damages When the Contract Is Upheld, 125 S. AFR. L.J. 413 (2008).

Frederick C. Dunbar & Arun Sen, Counterfactual Keys to Causation and Damages in Shareholder Class-Action Lawsuits, 2009 Wls. L. REV. 199.

James M. Fischer, The Puzzle of the Actual Injury Requirement for Damages, 42 LOY. L.A.L. REV. 197 (2008).

Francesco Giglio, Pseudo-Restitutionary Damages: Some Thoughts on the Dual Theory of Restitution for Wrongs, 22 CANADIAN J.L. & JURISPRUDENCE 49 (2009).

John W. Hill, et al., Increasing Complexity and Partisanship in Business Damages Expert Testimony." The Need for a Modified Trial Regime in Quantification of Damages, 11 U. PA. J. BUS. L. 297 (2009).

J. Aaron Landau, Comment, Punitives, Damaged: The Troubling Due Process Implications of Philip Morris v. Williams and the Case for a Sounder Approach to Litigating Third-Party Harm, 97 OR. L. REV. 637 (2008).

Dan Markel, How Should Punitive Damages Work?, 157 U. PA. L. REV. 1383 (2009).

Lars Noah, Comfortably Numb: Medicalizing (and Mitigating) Pain-and-Suffering Damages, 42 U. MICH. J.L. REFORM 431 (2009).

Remigius N. Nwabueze & Polycarp C. Okorie, Flexibility of Damages for Conversion and Detinue, 17 AFR. J. INT'L & COMP. L. 102 (2009).

Sergey Ripinsky, Assessing Damages in Investment Disputes." Practice in Search of Perfect, 10 J. WORLD INVESTMENT & TRADE 5 (2009).

Caprice L. Roberts, Restitutionary Disgorgement for...