U. S. Copyright Office Considers a Federal Right of PublicityBy Jennifer E. Rothman
May 2, 2019
In a report issued on April 23rd by the Register of Copyrights, the U.S. Copyright Office suggests that the lack of uniformity in state right of publicity laws may require Congressional intervention.
The call for Congress to consider such a right arose in the course of a 107-page report issued by the office on the status of moral rights in the United States. The focus of the report is on moral rights for authors, rather than on personality rights more generally. The report, titled Authors, Attribution, and Integrity: Examining Moral Rights in the United States, primarily focuses on the international treatment of moral rights, and the federal regime in the United States, particularly under the Copyright Act (including the Visual Artists Rights Act (VARA)) and the Lanham Act.
The report focuses on “the rights of attribution (the right to be credited as the author of one’s work) and of integrity (the right to prevent prejudicial distortions of one’s work).” As part of this inquiry, the report identifies various state laws that potentially serve to protect the moral rights of authors and performers.
The report notes the wide disparity among states in what their right of publicity laws cover. Relying in part on this website’s work analyzing and providing access to the varying state laws, the report notes the vast differences across states as to who can bring claims and under what contexts.
The inclusion of state privacy and publicity laws in the report is solely focused on how these laws can help authors (and performers) protect their moral rights. In particular, the report notes that these laws can provide claims against misattribution, and when a performance is usurped without permission (as in the Zacchini v. Scripps-Howard Broadcasting case, the infamous Supreme Court decision involving the human cannonball artist.) The report also observes that the right of publicity can sometimes protect the right of integrity where there is attribution in the context of a work that has been substantially altered without permission.
There is much to applaud in the report’s thoughtful consideration of the role of privacy law, particularly the misappropriation branch of that tort, and the right of publicity in protecting authorial rights. In particular:
The report importantly highlights the current chaos in right of publicity laws. The report notes that the “appearance of near-uniformity in adoption of some version of the right of publicity belies the degree to which the exact contours of the right differ significantly from jurisdiction to jurisdiction.” Because of this lack of uniformity, the report suggests that federal intervention may be advisable, albeit with some ambivalence: “If Congress wished to address some of the uncertainty and ambiguity created by the lack of harmonization among state right of publicity laws, Congress might consider adopting a federal right of publicity law.”
The authors of the report were up front about the likely challenges of Congress doing so, noting that the “[a]doption of such a federal right of publicity would be a significant undertaking.” The report notes that there would need to be much more consideration than is provided in this report about what such a law should provide, and whether it should preempt state laws.
The report also wisely highlights potential pitfalls of any federal right of publicity law. The report points to the need to determine whether the right should be transferable and under what conditions. I have strongly advocated against making the right transferable, at least when such alienability is unfettered. Allowing the right of publicity to be owned by anyone other than the underlying person jeopardizes our ability to maintain ownership of our own names, likenesses, and voices. (See, e.g., Jennifer E. Rothman, Only Robin Wright Should Own Robin Wright, The Volokh Conspiracy; Jennifer E. Rothman, The Inalienable Right of Publicity, Georgetown Law Journal.)
Further on in the report, the Copyright Office notes the substantial debate on whether moral rights should be waivable or alienable, observing that when such waivers and transfers are allowed they often become standard. Such a result undercuts the provision of moral rights protections in the first place. This concern is true in the extreme when it comes to allowing transfers of rights of publicity, because what is being transferred are not rights over an external work, but rights to one’s own personal identity.
Another concern with regard to drafting a federal version of the right of publicity is also one that I have raised: quoting from my book, the report notes that providing a postmortem right of publicity raises taxation issues, and could “force heirs to commercialize the deceased person’s identity to pay off [estate tax] debt.” For more on this subject, see The Market in Dead People.
The report’s analysis of the right of publicity is carefully worded, and does not go out on a limb with regard to any particular recommendations. The report broadly recommends that any federal law protect “an individual’s name, signature, image, and voice against commercial exploitation during their lifetime.” I note that what is meant by “commercial” is not entirely clear, though likely means “for profit” in this context. The report also recommends explicit carve-outs for expressive works and other exceptions in the interest of “First-Amendment-protected activities.”
The report is neutral on whether any federal law should preempt state laws. But it is hard to see how any federal right of publicity law could meaningfully address the wide and conflicting differences in state laws without preempting them.
One quibble I have with the report is largely from the perspective of a legal historian. Although the report wisely and accurately notes that the right of privacy’s misappropriation branch and the right of publicity are largely equivalent today, and also that right of publicity laws protect both economic and noneconomic concerns, the report repeats a number of common, but historically inaccurate claims. These mistaken assertions are primarily located in a footnote at the beginning of the section on privacy and publicity laws. The footnote repeats many of the myths about the right of publicity’s development that I have debunked at length in my recent book, The Right of Publicity: Privacy Reimagined for a Public World (Harvard Univ. Press 2018).
Without belaboring these errors in what is otherwise a fair treatment of the state of the law, and one done in the context of a much larger report focused primarily on other issues, I will simply note a few historical corrections in service to historical accuracy and for future reports on the subject:
First, Warren and Brandeis were not the “first,” nor the only ones to call for a right of privacy in the mid to late 1800s. Many other commentators and courts did so.
Second, the Second Circuit decision in Haelan Labs. v. Topps Chewing Gum, neither coined the term nor created the concept of the “right of publicity.” That term and concept dates back to the late 1800s and early 1900s.
Third, the claims that public figures could not recover under the right of privacy are overstated and largely inaccurate. For example, one of the cases to which the report cites for this proposition, O’Brien v. Pabst Blue Ribbon, does not stand for this proposition. The rejection of the plaintiff’s privacy-based misappropriation claim in that case was unrelated to his status as a public figure. Instead, his claims were rejected for two other reasons: First, because O’Brien (a well-known college football quarterback) had consented to the use of the photograph by his college’s publicity department, which had authorized the very use of his image by the beer seller to which he objected; and second, because he failed to sufficiently plead a commercial, rather than a noncommercial, harm from the use, and failed to prove the noncommercial harm that he did plead.
Will the Copyright Office’s report kickstart efforts for Congress to consider a federal right of publicity? It is hard to say. It is, however, a step in that direction―recognizing that there is a problem is the first step to addressing it. Given the chaotic state of affairs across states as to what the right of publicity covers, it is beginning to look more and more like such a federal intervention may be necessary.