The Other Side of Garcia: The Right of Publicity and Copyright Preemption

Abstract

This essay is adapted from a talk that I gave on October 2, 2015 at Columbia Law School’s annual Kernochan Center Symposium. The all-day conference focused on Copyright Outside the Box. The essay considers the aftermath of Garcia v. Google, Inc., and the Ninth Circuit’s suggestion in that case that Garcia might have a right of publicity claim against the filmmakers, even though her copyright claim failed.

The essay provides a partial update of my prior work, Copyright Preemption and the Right of Publicity, 36 U.C. Davis L. Rev. 199 (2002), and suggests that despite numerous cases over the last decade, the law remains mired in confusion and contradictory decisions. Courts continue to apply the unworkable Section 301 from the Copyright Act, instead of applying broader principles of conflict preemption for which I have long advocated. Worst of all, the right of publicity remains on a collision course with copyright law with insufficient guidance as to when it should be preempted.

Keywords: right of publicity, copyright, preemption, intellectual property, supremacy clause, constitution, Dryer, Facenda, Wendt, Garcia, Google,

JEL Classification: K1, K11, K19, K39, L86, Z20