The Right of Publicity vs. The First Amendment: A Property and Liability Rule Analysis

Abstract

This Article has three objectives. First, it exposes the massive confusion surrounding the conflict between the right of publicity and the First Amendment. Second, it makes a case for resolving this conflict by applying a property and liability rule framework such as that found in other areas of the law. Third, it develops a specific mode of analysis within which this framework can be applied and thus supplies the organization that has so far eluded this difficult area.

The overall inquiry of this Article is geared toward resolving those situations in which, but for the First Amendment, there would be a right-of-publicity violation. In such instances, courts must confront the impact of the First Amendment upon what would otherwise be an actionable invasion of property rights. One premise of this Article is that integral to the resolution of this conflict is the application of a combination of property and liability rule principles. Thus, the approach taken here necessitates a choice between three possible resolutions in any given situation: property rule protection (under which the appropriate remedy is an injunction and concomitant damages), liability rule protection (which disallows an injunction but requires the defendant to pay damages), and no protection for a right-of-publicity plaintiff. A second premise of this Article is that, in any given case, the determination of appropriate relief should be made by balancing the relevant harms triggered by allowing unauthorized uses of publicity rights against the benefits that society derives from such uses. In analyzing the nature of the harms to plaintiffs, this Article introduces the application of morally based harms caused by publicity violations.

The proposal developed in this Article calls for the invocation of a more flexible remedial apporach in cases involving the appropriate degree of public access to publicity rights. It also supplies the framework within which the judiciary can exercise this much needed flexibility.