Righting the Wrong of Publicity: A Novel Proposal for a Uniform Federal Right of Publicity Statute
Alex J. Berger
Volume 66, Issue 3, 845-70
The Ninth Circuit’s decision in In re NCAA Student-Athlete Name & Licensing Litigation highlights the enlargement of protection of celebrities’ “identities” under California’s right of publicity scheme. A comparison of California’s and New York’s right of publicity laws exposes the wider issues that cause confusion and uncertainty regarding right of publicity throughout the country. Such issues include ambiguous definitions of “identity,” conflicts with federal copyright law, jurisdictional problems, and First Amendment free speech issues. This Note explores the roots of right of publicity law and how its current forms foment disarray across the nation. Paying particularly close attention to California and New York, where right of publicity cases are rife, and the law varies greatly, this Note argues for a uniform federal right of publicity statute. Further, this Note sets out a novel approach for a statute that incorporates the original economic rationale behind right of publicity law and a number of carve outs designed to protect artists’ First Amendment rights. Such a statute would inject much needed uniformity and fairness into a fractured system.