Agreements

Introduction

The time has come for a federal right of publicity statute. Because of technological advances, expressive works and advertisements are increasingly disseminated on a national, if not international, scale. Right of publicity law, however, remains entirely a creature of state law. Different states have widely divergent right of publicity laws. This divergence results in a multistate patchwork that forces national content producers to engage in self-censorship and tailor their content to the laws of states that provide the least amount of protection to free speech rights. The outsized role of Indiana’s right of publicity law provides a good example. In recent years, numerous lawsuits have been brought against non-Indiana defendants for violations of Indiana right of publicity law by celebrities and heirs of deceased celebrities who have had little or no connection to Indiana. The reason is simple. Indiana’s right of publicity statute...

I. Introduction to the Right of Publicity

Much discussion has centered on the parameters of the right of publicity as it relates to actors and the fictional character which they portray. The Ninth Circuit has provided the most expansive definition of the right of publicity; however, many critics believe the court’s decisions were ill-conceived and only added to the confusion surrounding the right of publicity. This paper addresses the right of publicity and its origin. It then discusses the Federal Copyright Act and the confusion it causes regarding the right of publicity. The next portion goes on to discuss different ways in which the right of publicity could be preempted by the Federal Copyright Act. Part IV addresses possible First Amendment issues which the publicity right could face, and the likelihood of a publicity right claim surviving a First Amendment defense...