Split Personality: Constructing a Coherent Right of Publicity Statute

• Author: Joshua L. Simmons - Miranda D. Means
• Position: Joshua L. Simmons is an intellectual property partner at Kirkland & Ellis LLP. He represents clients in appellate and trial courts around the country, particularly in complex cases and those of first impression. He can be reached at joshua.simmons@kirkland.com. Miranda D. Means is an intellectual property associate at Kirkland & Ellis LLP. Her...
• Pages: 39-45

Published in Landslide® magazine, Volume 10, Number 5, a publication of the ABA Section of Intellectual Property Law (ABA-IPL), ©2018 by the American Bar Association. Reproduced with permission. All rights reserved.

This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Over the past few years, a number of states have

considered new or revised statutes that would

protect the right of publicity. For example,

last year the New York State legislature con-

sidered Assembly Bill A08155, which would,

at least nominally, transform New York’s right

of publicity from a privacy right, codied in Civil Rights Law

article 5, to a property right. By transitioning from an inalien-

able personal right to an alienable property right, New York would

make the right of publicity transferable and descendible.

The response to the bill was swift and heated. A coali-

tion of 38 individuals and organizations ran a full-page

advertisement in the Albany Times-Union urging the legis-

lature to reject the bill on First Amendment grounds.1 The

coalition included such varied organizations as the Report-

ers Committee for Freedom of the Press, the Media Law

Resource Center, the Motion Picture Association of Amer-

ica, the Electronic Frontier Foundation, and the Internet

Coalition. A strong supporter of the bill, the Screen Actors

Guild-American Federation of Television and Radio Art-

ists (SAG-AFTRA), ran its own advertisements, demanding

that New Yorkers “[p]revent exploitation of performers in

the digital era.”2 When the dust settled and the bill came to a

vote, the New York Assembly declined to pass it. Still, a Sen-

ate version of the bill (Senate Bill S5857A) currently is being

considered by the New York Senate Judiciary Committee.3 If

it moves out of committee, it may soon reignite the New York

right of publicity debate.

JoshuaL. Simmons is an intellectual property partner at Kirkland

& Ellis LLP. He represents clients in appellate and trial courts

around the country, particularly in complex cases and those of rst

impression. He can be reached at joshua.simmons@kirkland.com.

MirandaD. Means is an intellectual property associate at Kirkland

& Ellis LLP. Her practice focuses on litigation and counseling. She

can be reached at miranda.means@kirkland.com.

Constructing a Coherent Right

of Publicity Statute

By JoshuaL. Simmons and MirandaD. Means

Spl i t

Personality