Wednesday 20 March 2013

Right of Publicity, Identity, and Performance


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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