Article in Virginia Law Review Documents Expansive Reach of the Right of Publicity
November 19, 2015
My latest article, Commercial Speech, Commercial Use and the Intellectual Property Quagmire, is in print this week in the Virginia Law Review. The article considers the role in intellectual property laws of commercial speech doctrine and considerations of commerciality more generally (usually in the sense of a use that is for profit). In terms of right of publicity laws, the article documents that the right of publicity applies much more broadly than commercial advertising and therefore threatens a much wider array of speech than is often claimed. Many states limit the right to commercial purposes, but define that term differently from one another, and often sweep in any for-profit uses to the definition. Other states allow claims in entirely noncommercial contexts. (See pp. 1950-1959 of the article). This website and its state-by-state analysis grew out of my research for this article and the abundantly clear need to facilitate pinpointing where each state stands on questions of commerciality, as well as on other aspects of the right that vary widely from state to state.
The article digs deeper though and considers whether the right of publicity must be limited to commercial speech to be constitutional – and concludes that it need not be, even if many wish it were. The right nevertheless could be limited to commercial speech under current constitutional doctrine. The justifications behind having right of publicity laws in the first place, however, do not support so limiting the law. Both economic and dignitary injuries arise from nonconsensual uses of a person’s identity in the context of noncommercial speech, and users may be unjustly enriched in both contexts. Using commercial speech as a dividing line is also problematic practically, both because it's hard to change all of the state laws without a federal law (an unlikely change) and the commercial speech doctrine itself is narrowing and may be at its end. Moreover, the dividing line between what is commercial and noncommercial speech is challenging, and often breaks down in the context of IP disputes. Moving forward it may be better to consider alternative routes to limiting the right, some of which I will be suggesting in my forthcoming book. One crucial route to limiting the potentially expansive reach of the right of publicity is for the Supreme Court to provide better guidance on the First Amendment limits to the right, especially in the context of expressive works. (See Amicus in Davis v. Electronic Arts.)
The article also addresses the massive confusion over the scope of the Lanham Act – and whether it is limited to commercial speech or not. Given the frequent overlap in right of publicity and false endorsement claims, sorting out the scope of the Lanham Act is also vital. Again, the Lanham Act is not constitutionally limited to commercial speech and as I elaborate in the article the goals behind the Act are best supported by allowing it to apply to noncommercial speech in some contexts.
Jennifer E. Rothman, Commercial Speech, Commercial Use and the Intellectual Property Quagmire, 101 Virginia Law Review 1929 (2015)