This Article identifies a striking asymmetry in the law’s disparate treatment of publicity-rights holders and copyright holders. State-law publicity rights generally protect individuals from unauthorized use of their name and likeness by others. Publicity-claim liability, however, is limited by the First Amendment’s protection for expressive speech embodying a ‘transformative use’ of the publicity-rights holder’s identity. This Article examines for the first time a further limitation imposed by copyright law: when a publicity-rights holder’s identity is transformatively depicted in a copyrighted work without consent, the author’s copyright can produce the peculiar result of enjoining the publicity-rights holder from using or engaging in speech about her own depiction. This Article offers novel contributions to the literature on copyright overreach and: (1) identifies a legal asymmetry produced in the interplay of publicity rights, copyright law, and the First Amendment; (2) examines the burdens on constitutionally protected speech, autonomy, and liberty interests of publicity-rights holders when copyright law prevents or constrains use of their own depiction; and (3) outlines a framework for recognizing a ‘copyright right of publicity’ to exempt the publicity-rights holder’s use from copyright infringement liability.
Notably, this Article contributes uniquely to the literature by including a special first-person narrative from an internationally recognized celebrity whose persona was prominently depicted without prior notice or consent in a wide-release feature film.
Weisbord, Reid K, A Copyright Right of Publicity (May 1, 2016). Fordham Law Review, Vol 84, No 6, 2016.