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Unpublished Paper
Property's End: Why Competition Policy Should Limit the Right of Publicity
ExpressO (2010)
  • Steven Semeraro, Thomas Jefferson School of Law
Abstract
The right of publicity is an intellectual property right that empowers celebrities to prohibit the unauthorized use of their names, images, and identities. Over the past two decades, academic commentators have presented powerful critiques of this right. Yet, legislatures and courts have turned a deaf ear, continuing to expand publicity rights. This article has two goals. First, it explains why the seemingly persuasive critique of the right of publicity has failed to influence law makers. The right’s critics claim that publicity cannot be property because the arguments used to justify actual property simply do not apply to publicity. When one looks closely at any form of property, however, the standard justifications break down. As a result, each quiver in the right-of-publicity critic’s arsenal turns out to be just as fatal when aimed at every other form of property. This part of the article reveals the critique’s over-breadth and postulates that judges and legislators are reluctant to substantially restrict the right of publicity on grounds that would also compel fundamental changes to all property rights. Second, this article considers theories that would more effectively limit the right of publicity. It first explores whether free speech interests should limit publicity rights. This approach is doomed to fail. Courts cannot balance the social value of particular forms of speech against publicity rights because the value of publicity is so poorly articulated. Even more fundamentally, the concept of balancing free speech and property interests is incoherent. Individuals have no right to use another’s property to speak. Any attempt to limit the scope of the right of publicity through the prism of the First Amendment will thus beg the question whether publicity is property. If it is, then any restraint on speech should be neither surprising nor problematic. If it is not, then any restraint on speech would be unacceptable. Attempting to balance speech and publicity simply restates the underlying question—whether publicity rights are property—without providing any means to answer it. This article proposes that competition policy should delineate the scope of the right of publicity. Competition policy plays a critical role in defining property’s end, limiting the scope of all recognized property rights when those rights enable owners to stifle meaningful competition. No commentator or court has applied this insight to the right of publicity. Doing so would enable courts to narrow the scope of publicity rights whenever a celebrity’s exercise of that right would restrain competition, thereby curbing the worst abuses in the publicity rights cases without casting doubt on the legitimacy of any other property right.
Keywords
  • right of publicity,
  • antitrust,
  • free speech,
  • property rights,
  • intellectual property,
  • publicity rights
Disciplines
Publication Date
July 22, 2010
Citation Information
Steven Semeraro. "Property's End: Why Competition Policy Should Limit the Right of Publicity" ExpressO (2010)
Available at: http://works.bepress.com/steven_semeraro/8/