Publicity Dilution: A Proposal for Protecting Publicity Rights
Konsky, Sarah M., Santa Clara Computer & High Technology Law Journal
The right of publicity prohibits commercial use of a person's name or likeness without the person's consent. (1) The right is grounded in property rationales and is supposed to safeguard the economic value of a person's name or likeness against commercial exploitation, (2) however, the current right of publicity goes much farther. Courts have read the protection of a use of a name or likeness broadly, allowing recovery for everything from the use of a robotic depiction of a celebrity to the use of a comedian's catchphrase. (3) A nonfamous person can recover under the right even though her persona does not have an inherent economic value. (4) In some cases, a person can recover without showing actual economic injury to her persona. (5) The result is an extremely broad right of publicity, in which a person can recover for commercial uses of almost anything associated with her identity.
The right of publicity has become too unwieldy and overbroad, and it goes beyond its purpose of protecting the underlying economic value in a person's name or likeness. (6) Further, the expansive right chills valuable speech that would otherwise be protected under the First Amendment. The current right of publicity curbs society's entitlements under the First Amendment to invoke the names and likenesses of cultural icons. (7) Many appropriations contain both commercial and noncommercial speech, and therefore do not automatically warrant the lower level of protection given to purely commercial speech under the First Amendment. (8)
This paper proposes a new standard of right of publicity dilution based on trademark dilution law. The Federal Trademark Dilution Act ("FTDA") prohibits commercial use of a famous mark that dilutes the mark's economic value. (9) The FTDA strikes an optimal balance by preventing use of a mark that harms property interests, while allowing more benign use of the mark. The FTDA's three key requirements of a famous mark, a commercial use, and actual dilution (10) should be applied in publicity cases. The FTDA standard would strike an optimal balance between protecting a celebrity's economic value and protecting the public's interest in speaking about its cultural icons.
Part II explains the origins and current status of the right of publicity. Part III provides a general summary of trademark law and a detailed analysis of the FTDA. Part IV proposes a new right of publicity dilution modeled on trademark dilution law. The argument for a new right of publicity dilution law proceeds in several parts. First, the current right of publicity is overprotective and inconsistent with the rationales behind the right. Second, a right of publicity dilution modeled after trademark dilution law would provide an optimal balance between preventing uses that cause economic harm and allowing free dialogue about cultural icons. The key requirements of this right of publicity dilution are a famous mark, a use in commerce, and actual dilution. Finally, an application of the right of publicity dilution to past cases illustrates that the proposed right provides an ideal level of publicity protection.
II. RIGHT OF PUBLICITY
The right of publicity is a relatively new right that was first adopted by a court in 1953. (11) Currently, the right of publicity prohibits unauthorized commercial use of a person's name or likeness. (12) To critically evaluate the right of publicity, it is necessary to understand the origins and justifications for publicity protection, the relevant statutory and common law bases of the right, and the current application of the right in case law.
A. Origins and Theoretical Background
Early foundations for the right of publicity were based in the right of privacy. (13) Prosser listed appropriation, which protects against the use of another's name or likeness for the benefit of the user, as one of the four privacy torts. (14) The privacy rationale suggests that unauthorized uses of a person's name or likeness will offend the person's dignity by exploiting her identity. …