This Note takes a critical look at the right of publicity in the context of the growth of the reality television industry and, for strong policy reasons, proposes a broad fair use defense to limit reality television stars’ right of publicity claims. Part I traces the formulation of the right to privacy at common law and the development of the right of publicity as a right distinct from privacy. Part II discusses whom the right of publicity protects, what reality television is, and how reality television stars are different from talent-based celebrities. Part III examines how broad publicity protection can conflict with copyright law, and the specific copyright preemption issues that arise when reality television stars are granted broad publicity rights; it also analyzes the justifications for the right of publicity and questions their application to reality television stars’ claims. Part IV outlines the First Amendment defense to right of publicity claims, the public’s interest in accessing celebrity identity for communicative purposes, and the inadequacy of the First Amendment tests currently adopted by the courts. Part V proposes a broad fair use defense to limit reality television stars’ publicity rights in order to prevent unjust enrichment and to grant the public with the unencumbered ability to participate in the construction of meaning in reality star and celebrity culture.
Cardozo Law Review de·novo
Korotkin, Lindsay, "Finding Reality in the Right of Publicity" (2013). Cardozo Law Review de•novo. 12.