Hastings Law Journal Volume 71 Issue 2 Article 5 2-2020 Unmasking the Right of Publicity Dustin Marlan Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal Part of the Law Commons Recommended Citation Dustin Marlan, Unmasking the Right of Publicity, 71 HASTINGS L.J. 419 (2020). Available at: https://repository.uchastings.edu/hastings_law_journal/vol71/iss2/5 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact
[email protected]. Unmasking the Right of Publicity † DUSTIN MARLAN In the landmark 1953 case of Haelan Laboratories v. Topps Chewing Gum, Judge Jerome Frank first articulated the modern right of publicity as a transferable intellectual property right. The right of publicity has since been seen to protect the strictly commercial value of one’s “persona”—the Latin-derived word meaning the mask of an actor. Why might Judge Frank have been motivated to fashion a transferable right in the monetary value of one’s public persona distinct from the psychic harm to feelings, emotions, and dignity rooted in the individual and protected under the rubric of privacy? Judge Frank was a leading figure in the American legal realist movement known for his unique and controversial “psychoanalysis of certain legal traditions” through influential books including Law and the Modern Mind. His work drew heavily on the ideas of psychoanalytic thinkers, like Sigmund Freud and Carl Jung, to describe the distorting effects of unconscious wishes and fantasies on the decision-making process of legal actors and judges.