Disciplining the Right of Publicity's Nebulous First Amendment Defense with Teachings from Trademark Law

Authors

Wee Jin Yeo, Boston University School of Law

Abstract

Academic commentators, practitioners and students alike have written a flurry of articles on the First Amendment defense in right of publicity law, as courts cannot seem to agree on the appropriate balancing test that should be used to weigh celebrities 'publicity rights against the public's rights to use celebrity personas as communicative tools. Various tests have been proposed as the panacea, but are ultimately unsatisfactory, due to inadequacies that prevent them from striking a normatively desirable balance.

This Article suggests that the core normative justification behind the right of publicity is the prevention of unjust enrichment. Thus, following recent developments in trademark law evincing the courts' unwillingness to allow free riders to reap what they have not sown, limiting doctrines in trademark law may provide helpful guidance in the right of publicity context. Specifically, it is proposed that a principled First Amendment defense may be fashioned by adopting a modified version of trademark law's First Amendment balancing test.

Disciplines

Civil Rights and Discrimination | Communications Law | Comparative and Foreign Law | Entertainment, Arts, and Sports Law | First Amendment | Intellectual Property Law | Jurisprudence | Law

Recommended Citation

Wee Jin Yeo, Disciplining the Right of Publicity's Nebulous First Amendment Defense with Teachings from Trademark Law, 34 Cardozo Arts & Ent. L.J. 401 (2016).
Available at: https://larc.cardozo.yu.edu/cardozoaelj/vol34/iss2/4