Remarks on the Right of Publicity: Theory and Scope

McKenna, Mark P.

I have written exactly one paper about the right of publicity. It was in 2004. So this was a good chance to start thinking hard again about things I have not thought about in a while. That paper was the first paper I ever wrote as an academic. I reread it last week, and it felt a lot like the first paper I ever wrote as an academic. I do not advise that, by the way. It is not a good feeling. What I was most struck by in reading that paper is that nothing has changed in the time since I wrote it in terms of what the big issues are. I say this having reread Mark and Stacey’s piece as well, which is about the same time period.

What those papers were trying to do was to think about what the right of publicity is, what it should be about, whether it has a real conceptual core to it, and what would follow from that in terms of the structure of the right. This is the way academics tend to think: What is the right about, and then—on this naïve assumption that you might be able to deduce from the theory what the actual practice should be—whether the scope of the right is tethered to the right’s justification. If you can work out the right at a conceptual level, then all the doctrinal limits would follow from that.

Many people during that era offered ways of thinking about the right that would have justified a right of some scope—probably a more limited scope than some folks on this panel might want, but a right nonetheless. I think it is a more difficult question to figure out whether that right would be meaningfully different from what is protected under Section 43(a) type claims of false endorsement.

If you approach the issue, not from the perspective of theory, but from the doctrine itself, I do not think any fair-minded person could look at the right of publicity as it actually exists and believe that the doctrine derived from a coherent theory. It has characteristics of both personal and property rights. It resembles in different ways and at different times privacy and IP rights. But the mixture is hard to explain in any satisfactory way. Jennifer Rothman referred to it as having an identity crisis. I think that was probably generous. I think the fact is that is what really animated all the papers I was talking about: This sort of weird mixture of different things that make it hard to identify any particular coherent theory.


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October 31, 2019