'The Right of Publicity's Intellectual Property Turn' by Jennifer E. Rothman in (2019) 42(3)
Columbia Journal of Law and the Arts comments
The Article is adapted from a keynote lecture about my book, The Right of Privacy Reimagined For A Public World (Harvard Univ. Press 2018), delivered at Columbia Law School for its symposium, “Owning Personality: The Expanding Right of Publicity.” The book challenges the conventional historical and theoretical understanding of the right of publicity. By uncovering the history of the right of publicity’s development, the book reveals solutions to current clashes with free speech, individual liberty, and copyright law, as well as some opportunities for better protecting privacy in the digital age.
The lecture (as adapted for this Article) explores in greater depth one major theme drawn from the book―the right of publicity’s turn in the late 1970s from being a personal right rooted in an individual to being an intellectual property right separable from the underlying identity-holder. This transformation of people into a form of intellectual property has led to significant expansions in the reach and scope of right of publicity laws across the country. At the same time, treating the right of publicity as IP has undermined First Amendment and copyright-based limits on these laws, and jeopardized the freedom of the very identity-holders upon whose interests the right is justified. The Article considers not only whether the IP rubric is appropriate for the right of publicity, but also whether the challenges posed by right of publicity laws are a magnified version of more general problems that IP laws face today ― in particular, the continued expansion of these rights unmoored from the initial justifications for the entitlements, and without adequate protections for socially valuable uses.
'Selfmarks' by William McGeveran in (2018) 56
Houston Law Review 333
comments
'Selfmarks' are branded personal identifiers that can be protected as trademarks. From Kim Kardashian West to Beyoncé’s daughter, attempts to propertize persona through trademark protection are on the rise. But should they be? The holder of a selfmark may use it to send a signal about products, just like the routine types of brand extension, cross-branding, and merchandising arrangements fully embraced under modern trademark law. Yet traditional trademark doctrine has adjusted to selfmarks slowly and unevenly. Instead, the law has evolved to protect selfmarks through mechanisms other than trademarks. In an age where brands have personalities and people nurture their individual brands, it is time to ask what principled reasons we have not to protect the individual persona as a trademark.
