The Base for Right of Publicity Laws and Protection

AuthorWeston Anson
Pages33-45
33
CHAPTER 3
The Base for Right of Publicity
Laws and Protection
We begin this chapter by looking at the differing positions on rights of publicity, starting
with the arguments that right of publicity really isn’t a form of intellectual property (IP).
There are a number of senior and well-respected legal thinkers who believe that in fact
right of publicity is either not well grounded in law or not intellectually or commercially
sound as a right because it inappropriately rewards celebrities. We move on to a second
school of thought that believes that right of publicity is simply trademark protection
disguised as a different form of intellectual property—a wolf in sheep’s clothing.
Part of what we cover in this chapter, also, is the fact that right of publicity cases
find their foundation in multiple and diverse causes of action. You’ll find as you read the
case law summaries and case studies that the diversity of legal claims can range from
false advertising and trademark infringement to statutory misappropriation of likeness
and defamation under state laws, to copyright infringement and violation of right of pri-
vacy. Also we’ll look at the legal framework of protection for right of publicity because,
unlike patent, trademark, and copyright law, there is no overarching federal law pro-
tecting right of publicity. There is a patchwork of protection at the federal and state
level that we briefly summarize. We look at the continuing 20-plus-year effort to bring
about a federal right of publicity law.
Finally, we conclude this chapter with two brief case studies involving the rap
singer 50 Cent that show how the right of publicity may in fact encourage bad behavior
in some celebrities who then use the right of publicity laws for the purpose of litigation
to seek financial gain and reward.
A lot to think about for the uninitiated—lawyer, licensing agent, or talent
manager—or celebrity.
ans50153_03_c03_033-046.indd 33 3/23/15 10:15 AM

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