Thomas Kadri, ‘Drawing Trump Naked: Curbing the Right of Publicity to Protect Portrayals of Real People’

Abstract
From Donald Trump to Lindsay Lohan to Manuel Noriega, real people who are portrayed in expressive works are increasingly targeting creators of those works for allegedly violating their ‘right of publicity’ – a state-law tort, grounded in privacy concerns, that prohibits the unauthorized use of a person’s name, likeness, and other identifying characteristics. This Article provides a new framework to reconcile publicity rights with a robust commitment to free speech under the First Amendment. After describing the current landscape in the courts, this Article scrutinizes the First Amendment theory that has motivated many of the past decisions confronting the right of publicity. It then reframes the doctrine in a new way: as four distinct defenses that have developed to assuage concerns about publicity rights interfering with speech on matters of public concern. These four defenses might seem encouraging to those who worry that publicity rights impair expressive rights. But all too often they have instead complicated and undermined the opposition to publicity rights and, as a result, they pose an unexpected and underestimated threat to free speech. To combat this threat, this Article discusses alternatives that would reframe First Amendment theory as it relates to the right of publicity …

Kadri, Thomas, Drawing Trump Naked: Curbing the Right of Publicity to Protect Portrayals of Real People (September 10, 2018). Maryland Law Review, forthcoming.

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