In Jennifer Rothman’s new book The Right of Publicity: Privacy Reimagined for a Public Age, she argues that we have wrongly reconceived the right of publicity as an intellectual property (IP) right rather than as a privacy-like right of ‘self-ownership’, and that in doing so we have let it grow unchecked in ways that serve no good purpose. She endorses returning to the historical core of the right of publicity as a privacy right that primarily protects human dignity, and argues that doing so will enable us to limit the growth of the doctrine and apply the First Amendment to effectively protect speech threatened by the current, mutant right of publicity.
Rothman’s book is a compelling read, and her explication of the history and how we got here is fascinating and largely persuasive. And I agree with her both about the problems with the current broad form of the right of publicity and about many of the specific doctrinal changes we should make to cut it back to a manageable size. But I think there is a disconnect between the history she has uncovered and the theoretical and legal framework she proposes. The history of the right of publicity as a privacy rather than an IP right is not encouraging for those who would limit the scope of the right or apply robust First Amendment principles to counterbalance it. The right of privacy that grew into the right of publicity was, from the start, capacious, unruly, poorly cabined, and intolerant of free speech. While dropping the idea of the right of publicity as IP might solve particular problems such as its transferability, it is unlikely to give us the limits she wants on the substantive scope of the right itself. To get there, we would need to challenge the nature of the use of one’s identity as a privacy harm in and of itself. Ironically, understanding the right of publicity as a specific form of IP right – a trademark-like right against deception – may point the way towards a more reasonable doctrine.
Lemley, Mark A, Privacy, Property, and Publicity (July 27, 2018). Stanford Public Law Working Paper.