The Right of Publicity: Privacy Reimagined for New York?

Abstract

This essay is based on a featured lecture that I gave as part of the Cardozo Arts & Entertainment Law Journal’s 2 symposium on a proposed right of publicity law in New York. The essay draws from my recent book, The Right of Publicity: Privacy Reimagined for a Public World, published by Harvard University Press. Insights from the book suggest that New York should not upend more than one hundred years of established privacy law in the state, nor jeopardize its citizens’ ownership over their own names, likenesses, and voices by replacing these privacy laws with a new and independent right of publicity law, at least not the versions thus far proposed.

The essay begins by busting a host of myths about the development of privacy law in New York and across the nation. The tort-based right of privacy was, and remains, the original right of publicity, and was even referred to as a right to stop “unwarranted publicity.” Privacy laws, from the beginning, protected the famous and anonymous alike, and allowed for recovery of economic and business damages, as well as of emotional distress and reputational harms.

In the essay, I debunk the common, albeit erroneous, claim that the right of publicity was created in 1953 by the Second Circuit Court of Appeals in Haelan Labs. v. Topps Chewing Gum. Instead, the turn to a transferable and independent (of privacy) right of publicity actually occurred later, and was driven in part by Hollywood lawyers and heirs of celebrities who saw the advantages of a transferable property right in a person’s identity. Such a shift, however, is often at the expense of the very individuals the right of publicity is supposed to protect. The essay concludes with some recommendations for New York, and for right of publicity and privacy laws more generally.

Keywords: right of publicity, right of privacy, right to privacy, intellectual property, transferability, alienability, First Amendment, property, torts, legal history, Erie doctrine, Haelan Labs. v. Topps Chewing Gum, Zacchini v. Scripps-Howard Broadcasting, New York, legislation, postmortem, wills & trusts

JEL Classification: D63, J12, J17, J18, J24, J54, K11, K13, K36, K34, K35, K3, K39, N30, N31, N32, O3, O34, O31, O33, O3