Yale Brainstorming Workshop on How to Fix the Right of PublicityBy Jennifer E. Rothman
October 19, 2015
This weekend I took part in an all-day workshop at Yale Law School, sponsored by the Information Society Project and the Abrams Institute for Freedom of Expression. Some of the leading right of publicity and First Amendment litigators and scholars in the country were present. The workshop operated under Chatham House rules which means I cannot reveal any of the participants (though they may self-disclose) and cannot identify comments with particular speakers, even if known. In light of this, here are some reflections on the day’s discussion. Unsurprisingly, there was a consensus that the right of publicity is a mess and that the vast patchwork of different state laws creates chaos and a system in which the most speech-restrictive laws determine what creators make. Much of the day was spent considering Davis v. Electronic Arts and hoping that the Supreme Court will grant review of the case to fix the mishmash of First Amendment approaches. Particular hopes ranged from overruling or at least narrowing Zacchini v. Scripps-Howard Broadcasting, 433 U.S. 562 (1977), to applying strict scrutiny to right of publicity claims (at least outside commercial speech cases), to adopting the Rogers test for right of publicity cases, to hoping to at least make the transformativeness test as workable and broad as possible. The group was unable to reach any consensus on why we have right of publicity laws; there was much debate about which justifications for right of publicity laws held up to scrutiny. Most seemed to agree that the incentive-based rubric for justifying the right of publicity was the least convincing of the bunch. The group recognized that one must confront the Ninth Circuit’s instinct that there is something concerning about reanimating actors for reuse in future movies as a substitute for hiring the living actor to perform in the film. A report from the workshop will be released by Yale Law School’s Information Society Project and its Senior Fellow Sandra Baron who organized this wonderful event. I will update this website when the report is released.