The Commercial Appropriation of Personality

The Commercial Appropriation of Personality

The Commercial Appropriation of Personality

The Commercial Appropriation of Personality

Synopsis

Commercial exploitation of attributes of an individual's personality (name, voice and likeness) is characteristic of modern advertising and marketing. This volume provides a framework for analyzing the disparate aspects of the commercial appropriation of personality and traces its discrete patterns in the major common law systems. It considers whether a coherent justification for a remedy may be identified from a range of competing theories.

Excerpt

Commercial appropriation of personality is not a new phenomenon, although debate concerning its status and mode of legal regulation is becoming increasingly topical. The practice of using celebrities and ordinary individuals with no obvious public profile to help sell a vast range of goods and services flourishes. Yet relatively little attention has been devoted to the legal basis on which some of these often lucrative arrangements are based. The roots of this study lie in English law which has been reluctant to provide substantive legal protection for the attributes of an individual's identity. The other major common law jurisdictions have, to varying degrees, been less reluctant to do so. The different patterns in several jurisdictions call for a detailed analysis of the leading cases and central concepts which illustrate quite different dynamics of legal development in the multifarious jurisdictions. Readers accustomed to dealing with intellectual property rights might be somewhat wary of digressions into the theories which lie behind the protection of personal dignity and human rights. However, commercial appropriation of personality is a curiously hybrid problem which demands that several lines of enquiry be pursued.

Inevitably, a compromise has had to be struck between breadth and depth of coverage. The main sources of comparison are the major common law jurisdictions. The Australian courts have been rather more progressive in adapting the traditional English causes of action, while the Canadian courts have gone further and in a distinctly different way. Coverage of the substantial United States jurisprudence concerning commercial appropriation of personality has had to be more selective. To American lawyers, the whole project may have a vaguely nineteenthcentury feel, as the English courts continue to debate whether to recognise interests that the US courts have recognised and protected in various forms for over a century. While the American courts concern themselves with defining the scope and limits of intellectual property rights in personality which have developed largely through a mass of state case law, latterly supplemented by state statutes and codes, the English courts have . . .

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