The First Amendment and the Right(s) of Publicity.

• Author: Post, Robert C.

ARTICLE CONTENTS INTRODUCTION 89 1. THE FOUR RIGHTS OF PUBLICITY 93 A. The Right of Performance 96 B. The Right of Commercial Value 107 1. Confusion 110 2. Diminishment 111 3. Unjust Enrichment 114 C. The Right of Control 116 D. The Right of Dignity 121 II. THE CURRENT FIRST AMENDMENT CHAOS 125 III. RECONSIDERING THE FIRST AMENDMENT 132 AND THE RIGHT OF PUBLICITY A. Tiers of First Amendment Review 133 1. Public Discourse 136 2. Commercial Speech 138 3. Commodities 141 B. The First Amendment and the Right(s) of Publicity 146 1. The First Amendment and the 146 Right of Performance 2. The First Amendment and the 149 Right of Commercial Value 3. The First Amendment and 162 the Right of Control 4. The First Amendment and 165 the Right of Dignity CONCLUSION 171 INTRODUCTION

The right of publicity is broadly defined as a state-law tort designed to prevent unauthorized uses of a person's identity that typically involve appropriations of a person's name, likeness, or voice. (1) Because the right of publicity restricts what can be said, shown, or heard, it potentially conflicts with freedom of speech. Judicial analysis of this conflict is notoriously incoherent and inconsistent.

The essence of the problem is that unauthorized uses of identity are regulated for many different reasons that are frequently jumbled together in vague state proscriptions enforced either through common-law torts or legislation. Cogent First Amendment analysis requires careful specification of the precise state interests that justify government restrictions of speech. It should come as no surprise then that courts have failed to articulate any single First Amendment test adequate to encompass the many distinct legal interests that the contemporary right of publicity jams together.

In most of its formulations, the right of publicity refers to a distinct tortious act, which is broadly defined as the appropriation of a plaintiff's identity for a defendant's "use or benefit." (2) But a single tortious act can impair multiple distinct legal interests. Consider an example drawn from Hustler Magazine, Inc. v. Falwell: if I accuse you of having sex with your mother, I can damage the esteem in which you are held in your community, and so commit the tort of defamation. Or I can specifically intend to cause you emotional harm, and so commit the tort of intentional infliction of emotional distress. Or I can assault your dignity by revealing deeply held secrets, and so commit the tort of public disclosure of private facts. (3) Although these different torts arise out of the same act, they each possess different elements that track the specific harm the tort is designed to redress.

The underlying difficulty with the right of publicity is that it prohibits conduct without specifying the particular harm the tort seeks to address. (4) The resulting imprecision has encouraged the tort to expand uncontrollably, becoming, in the words of one commentator, like the "Wild West." (5) Not only has litigation involving the right of publicity greatly increased, (6) but disparities in defining the right across different jurisdictions have also grown. (7) In some states, the right is confined to commercial contexts, and in others it is not. (8) In some states, plaintiffs asserting the right must establish that they have commercially valuable identities, and in others they do not. (9) In some states, the right is oriented toward economic injury, and in others it encompasses injuries that are both economic and personal. (10) Because the harms redressed by the tort are uncertain and ill-defined, so too is First Amendment treatment of the tort.

This has real and important consequences. Those who wish to create expressive works that incorporate the identities of actual people, or who wish to post images and comments about actual people online, are bereft of reliable and foreseeable protections for the exercise of essential First Amendment rights. Courts have disagreed about the circumstances under which the First Amendment protects the use of well-known persons' identities in video games," news reporting, (12) posters, (13) board and card games, (14) prints, (15) comic books, (16) merchandise, (17) and movies. (18) The tort's jagged and unpredictable reach chills speech in extensive and immeasurable ways.

Our hope is to ameliorate these deficiencies in right of publicity law much as William Prosser did sixty years ago for the right of privacy. He looked at the "haystack in a hurricane" of privacy law and sought to make sense of it by distinguishing four distinct kinds of privacy torts. (19) In this Article, we seek to perform an analogous service for the right of publicity and, in the process, to clarify constitutional analysis of the tort.

We identify four distinct interests that the right of publicity typically seeks to vindicate. The disaggregation of these interests is an essential first step in addressing the current confusion because each of these four interests requires its own specific First Amendment analysis. As a helpful heuristic, one might even go so far as to imagine each of these interests as embodied in its own distinct tort, with its own set of prima facie elements.

For purposes of clarity, we denominate these four ideal torts as the right of performance, the right of commercial value, the right of control, and the right of dignity. These torts protect, respectively, plaintiffs' interests in controlling the use of their performances, in preserving the commercial value of their identity, in protecting the autonomy of their personality, and in maintaining the dignity of their person. In any given right of publicity action, one or more of these four distinct interests may be at stake. (20) When taken together, we believe that these four interests encompass the vast majority of cases presently brought to remedy unauthorized uses of identity under state right of publicity laws.

In Part I, we define these four different rights of publicity. In Part II, we describe the present sorry state of First Amendment analysis with respect to right of publicity claims. In Part III, we demonstrate that the clarity of First Amendment analysis will be much improved if publicity claims are disaggregated into the four interests that we identify. Though difficult constitutional judgments will of course remain, our hope is that our proposed framework will produce more reliable, predictable, and sound constitutional outcomes than the bedlam that presently prevails. We hope also to offer a useful vantage for further critique and reform of the underlying substantive tort.

1. THE FOUR RIGHTS OF PUBLICITY

   In this Part, we identify four different kinds of right of publicity claims. Each concerns a distinct interest that a plaintiff might seek to vindicate in a right of publicity action. Each of these four interests is visible in contemporary right of publicity litigation. In an ideal world, the protection of each interest would require its own set of prima facie elements and First Amendment analysis. But regardless of whether the protection of these interests is formally separated into distinct torts, cogent jurisprudential and constitutional scrutiny is not possible until these interests have been disaggregated and separately evaluated. (21)

   American law has protected plaintiffs' commercial and personality interests in their identity for more than a century. As one of us has documented, this body of law long predates Jerome Frank's and Melville Nimmer's consideration of the "right of publicity" in the 1950s. (22) Justifications for barring the unauthorized use of identity presently encompass the protection of both marketbased and personality-based interests. (23) Although some courts (and scholars) distinguish the privacy tort of appropriation (which they define as protecting personality interests in identity) from the tort of right of publicity (which they define as protecting the market value of identity), (24) many states treat the two torts interchangeably. (25) And even in states that claim to distinguish between the appropriation and right of publicity torts, the elements of the two causes of action are frequently identical. As the Supreme Court of Missouri candidly observed about that state's purportedly distinct causes of action, "the elements of the two torts are essentially the same." (26) Because both torts are in fact directed at preventing unauthorized uses of identity, we shall in this Article treat both as variants of a single overarching right of publicity.

   The vagueness that envelops the right of publicity is exemplified by the Restatement (Second) of Torts, which defines the tort of "Appropriation of Name or Likeness" as follows: "One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of privacy." (27) This definition focuses the tort of appropriation on the actions of a defendant. It is silent about the nature of the plaintiff's interests it seeks to protect. (28)

   The tort of appropriation is one of four privacy torts delineated in the Restatement (Second). In contrast to the other three privacy torts, appropriation does not require a plaintiff to demonstrate that a defendant has acted in a "highly offensive" way. (29) This omission is not accidental. "Highly offensive" behavior violates basic community norms and is thus experienced as an assault on dignity that is mortifying and degrading. (30) But the Restatement (Second) did not intend the appropriation tort merely to vindicate a plaintiff's dignity. Instead it formulated the tort to encompass all appropriations that can be said in some sense to "benefit" a defendant, which literally include uses by biographers, historians, newspapers, credit-reporting agencies, publishers of directories, and so on.

   In an effort to cabin this intolerable overbreadth, many states have imposed additional affirmative elements on the tort. Several...