Publicity Rights, False Endorsement, and the Effective Protection of Private Property

By Cooper, Michael A. | Harvard Journal of Law & Public Policy, Spring 2010 | Go to article overview

Publicity Rights, False Endorsement, and the Effective Protection of Private Property


Cooper, Michael A., Harvard Journal of Law & Public Policy


INTRODUCTION

Publicity rights, though lacking a physical manifestation, are of high social benefit. These rights protect the commercial value in an individual's name. As with other forms of property rights, the state should enforce them vigorously and effectively. In theory, these rights are currently protected, an implicit recognition of their value. In practice, however, two concerns are emerging: the devaluation of wealthier individuals' claims for protection and the use of an overly complex test that fails to provide adequate predictability or expedience. Indeed, the intellectual property protected by publicity rights--essentially the right to exploit a well-known reputation commercially--is particularly fragile because its value, though real and substantial, is embedded in public perceptions and can be easily damaged by undesired associations. (1) This Note proposes a revision of the publicity rights test and suggests that courts import the "Endorsement Test" from First Amendment doctrine to remedy these two issues while operating within the familiar framework of its existing jurisprudence. Guided by the rationale for the right, as demonstrated by its theoretical justifications, false endorsement claims should be evaluated under the following standard: In light of the context, would it appear to a reasonable observer that the disputed message constitutes an endorsement?

Dating to Adam Smith's publication of the Wealth of Nations, theorists have long recognized that a myriad of societal benefits flow from the protection of personal property. (2) As with physical property, courts have acknowledged the right of an individual to the intangible goodwill associated with his name. Today, this recognition is represented by the common-law right of publicity (3) and its statutory counterpart, the federal Lanham Act. (4)

There are, however, twin assaults on this element of personal property. First, a recent circuit court decision suggested that the individuals who most often bring suits to protect their publicity rights--wealthy celebrities--are less deserving of such property rights than the often poorer individuals who attempt to trade on their names and images. Even if this position represented a sensible policy, it ignores the reality that many of these individuals likely generated much of that wealth through the savvy development of an endorsement persona, all the while destroying their ability to continue to control or develop such a persona. Second, even where relief is eventually granted, the courts' doctrine creates delays and uncertainty. Indeed, courts often deploy complex balancing tests, evaluating the relevant question as one of fact. This method makes it difficult to offer the protections that the law should afford expeditiously and creates pressures for settlement even where no legal defense should exist.

In light of the importance of these property rights, an effective and expedient means of resolution is needed. The test must be effective at determining whether a false endorsement exists, because overprotection of property rights may be just as socially deleterious as underprotection. (5) Social science literature analyzing how individuals process information offers perspective on how best to protect this intellectual property. Indeed, some existing case law is already consistent with this research.

A review of case law in other realms reveals that there is already a test that can provide the robust protections required. The Endorsement Test from First Amendment case law would ask whether a reasonable person would think that the challenged material suggests that the plaintiff was either endorsing or disapproving the defendant's message. (6) Moreover, the relevant prong of this test already functions as a question of law, (7) allowing judges to dispose of the matter without lengthy trials where the issues are clear-cut. It is also consistent with the leading cases and research in the field. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Publicity Rights, False Endorsement, and the Effective Protection of Private Property
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.