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Sunday, November 15, 2015

Rothman's Roadmap to the Right of Publicity

Intellectual property comes in many different flavors, some better defined than others. One of the most peculiar is the so-called "right of publicity," which typically provides celebrities certain exclusive rights to use their name and likeness. As James H. Schnare II of the Nicklaus Companies observed at the Nova Law Review symposium New Media and Old Metaphors earlier this year, a great deal has been written about the right of publicity, almost none of it positive. Law students and non-IP professors typically encounter the right of publicity in the context of cases like the much-criticized White v. Samsung Electronics America, Inc., 971 F.2d 1395 (9th Cir. 1992), in which a split-panel of the 9th Circuit held that Vanna White's right of publicity enabled her to prevent Samsung from making a commercial featuring a letter-turning robot without permission.

In any case, the right of publicity grew out of the "right of privacy," something like a mirror images. It is a state law right, which can be based on statute, common law, or both, and can vary dramatically from state. As a consequence, it can be frustratingly difficult to determine which state's right of publicity law to apply, and even what the right of publicity law of many states actually provides. Thankfully, Professor Jennifer E. Rothman of Loyola Law School of Los Angeles has created Rothman's Roadmap to the Right of Publicity, an exceptionally useful (and well-designed!) website that provides accessible and detailed information about the right of publicity laws of all 50 states, as well as helpful information about the right of publicity in general. Whatever you think of the right of publicity on the merits, at least its now at least a little easier to figure out what it actually provides.

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Posted by Brian Frye on November 15, 2015 at 03:50 PM | Permalink

Comments

Thanks for posting. I taught the right of publicity this week in my Entertainment Law class. Always great to have an additional resource to keep up with the latest developments in this area.

Posted by: Victoria Schwartz | Nov 17, 2015 1:13:59 PM

This is a great resource--thanks for posting and thanks to Jennifer for compiling. I used to teach the Post-Mortem Right of Publicity in my Trusts & Estates course, but couldn't justify it anymore in a 3-credit course (even though Indiana's post-mortem right must be among the most generous in the country). Clearly, it's just too much material, but this is a great shortcut.

Posted by: Margaret Ryznar | Nov 15, 2015 11:42:57 PM

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