Book Reviews: The Commercial Appropriation of Fame: A Cultural Analysis of the Right of Publicity and Passing Off by David Tan
4 Pages Posted: 17 Dec 2018
Date Written: September 30, 2017
Abstract
Over several centuries, the rhetoric of ‘gap filling’ has often been invoked to naturalise expansions of intellectual property (“IP”) rights—copyright term extension, the patenting of life forms, trademark disparagement, and so forth. The ready pragmatism of the phrase has definite audience appeal, making big changes sound like straightforward responses to external conditions—rather than choices about how to draw the line between private ownership and public discourse. We know, however, that once filled, ‘gaps’ tend to stay filled. Retrospective debates about the wisdom of such decisions tend to be (both literally and figuratively) of merely academic interest. So what is most refreshing and commendable about Professor Tan’s The Commercial Appropriation of Fame is that the author’s thorough and clear-eyed review of one such gap-filling project is powerful and timely enough that it could make a practical difference. Professor Tan not only tells us all we need to know about the historical origins of legal protection for celebrity personas, but also suggests a way that the scope of such protection can be reasonably cabined, in ways that largely fulfill the public interest in access to information, in years to come. This is all the more true because in the United States (“US”) (with which Professor Tan is largely concerned), and elsewhere, the right of publicity and its cognates are largely creatures of the courts—common law improvisations which (even where they have received statutory confirmation) are still widely open to judicial interpretation.
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