1 Joel Fung Wacks a Reality Television Star Has Transformed Herself From

NONFICTIONAL CHARACTERS: HOW COPYRIGHT CAN RESTORE ORDER TO PUBLICITY RIGHTS Joel Fung Wacks INTRODUCTION A reality television star has transformed herself from wealthy but obscure heiress into household name thanks to a combination of canny marketing, poor (but salacious) life choices, and a distinctive personal style and affect. Now, third parties seek to profit from her fame. Paparazzi follow her every move, reporting mundane details of her life that even her TV show leaves on the cutting room floor. Local apparel shops sell t-shirts with an unflattering illustration of the celebrity’s face above an equally unflattering witticism playing on a recent scandal. Sugar Cola’s new advertising campaign implies that she is a regular consumer of their product. This is a lie (she drinks no soda at all), and, worse, threatens an endorsement deal with Syrup Co., a rival soda brand. The celebrity plans to call her lawyer. Which, if any, of these unauthorized uses of the celebrity’s persona should the law give her the right to block? The answer depends on the underlying rationale for providing legal rights in a person’s identity.1 Scholars and courts have suggested several possible reasons to provide legal protection for one’s persona. One common account is an incentives rationale analogous to the justification for copyright protection: legal exclusivity in one’s persona is necessary to incentivize the pursuit of fame.2 An incentives rationale could justify blocking the sale of t-shirts bearing the celebrity’s likeness—the exclusive right to make and sell derivative works has long been thought necessary to incentivize creative works in the copyright context.3 It might even justify blocking false endorsement, if endorsement rights are especially crucial to incentivizing the pursuit of fame. However, the copyright analogy is an odd fit if our celebrity wishes to use her publicity rights against the paparazzi. As noted, their product (tabloid stories reporting information about the celebrity’s life not included in her show) does not overlap 1 Of course, it also depends on whether such rights should exist at all. Some commentators favor eliminating publicity rights altogether. See, e.g., Lee Goldman, Elvis Is Alive, but He Shouldn’t Be: The Right of Publicity Revisited, 1992 BYU L. Rev. 597, 598 (1992) (“This article . concludes that the right of publicity should be abolished.”). Part II addresses this argument, arguing that there is more reason to believe publicity rights create social good than their harshest critics have concluded, but acknowledging that their necessity is far from certain. 2 Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 576 (1977) (“Ohio’s decision to protect petitioner’s right of publicity. provides an economic incentive for him to make the investment required to produce a performance of interest to the public.”); Stacey L. Dogan & Mark A. Lemley, What the Right of Publicity Can Learn from Trademark Law, 58 Stan. L. Rev. 1161, 1186 (2006) (“A final justification offered for the right of publicity is that the grant of such control is needed to encourage investment in the development of a public persona.”); Michael Madow, Private Ownership of Public Image: Popular Culture and Publicity Rights, 81 Calif. L. Rev. 127, 206 (1993) (“It is frequently asserted that the purpose of the right of publicity, like that of copyright, is to provide an economic incentive for enterprise, creativity, and achievement.”). 3 See 17 U.S.C. § 103(a). 1 with officially authorized depictions of the celebrity’s life. Given that fact, it seems the right to block this press coverage is unnecessary to incentivize the celebrity’s pursuit of fame. Other commentators have argued that the right of publicity is best justified as a means to prevent false endorsements, analogous to similar doctrines under trademark law.4 On this account, the right of publicity exists to prevent consumers from being duped into buying products they incorrectly believe have been endorsed by their favorite celebrities. Such a rationale would obviously justify a claim against Sugar Cola. On the other hand, it provides no justification for a suit against the paparazzi or even the t-shirt sellers. Reasonable consumers are unlikely to mistake tabloid coverage or unflattering t- shirts for authorized products simply because they bear the celebrity’s image. And even if a consumer did make such a mistake, it would be unlikely to affect their purchasing decisions.5 Finally, the right to control the use of one’s image, name, or other indicia of identity was historically based on a privacy or autonomy rationale.6 Conceivably, the right to control the use of one’s own persona could be used to block intrusive reporting, unauthorized merchandise, and false endorsement alike. However, the privacy justification is an awkward fit for the facts described above. A celebrity who makes her living by willingly broadcasting her life to the public is ill-positioned to argue that further public use of her persona violates her interest in privacy.7 However, the irate reality TV star need not fear her alleged harm will go unredressed. Indeed, all three rationales described above have worked their way into the law to some extent, either via state right of publicity laws or the Lanham Act.8 In many 4 Dogan & Lemley, supra note 2, at 1164 (arguing that both the right of publicity and trademark law allow celebrities and trademark holders, respectively, to “prevent the deceptive appropriation of the meaning associated with their goodwill and identity” while also ensuring “consumers can buy products with confidence in the truth of assertions about who makes, sponsors, endorses, and stands behind those goods.”). 5 See Fifty-Six Hope Rd. Music, Ltd. v. A.V.E.L.A., Inc., 778 F.3d 1059, 1084–85 (9th Cir. 2015) (Christen, C.J., concurring in part and dissenting in part) (arguing that even if consumers mistakenly believed use of celebrity’s image on a t-shirt required permission from celebrity’s estate, such misunderstanding was unlikely to have motivated purchase of the t-shirt). 6 Melissa B. Jacoby & Diane Leenheer Zimmerman, Foreclosing on Fame: Exploring the Uncharted Boundaries of the Right of Publicity, 77 N.Y.U. L. Rev. 1322, 1328 (2002) (“The right of publicity had its origins in a body of tort law that was designed to protect personal privacy.”); J. Thomas McCarthy, The Rights of Publicity and Privacy § 1:2 (2d ed. 2018) (“The right of publicity grew historically out of the state law right of privacy.”). 7 See Jacoby & Zimmerman, supra note 6, at 1329 (“An undercurrent of embarrassment attended the tort when celebrities invoked it . because it was conceptually difficult to understand how further commercialization could harm the privacy of someone who already earned his bread by exploiting his fame voluntarily in just this fashion.”). 8 To be clear, these are not the only rationales that have been proposed to justify right of publicity laws. For example, many commentators identify a moral rights or unjust enrichment basis for the right. Dogan & Lemley, supra note 2, at 1181–84 (describing the moral rights and unjust enrichment rationales). Others justify the right by reference to personal autonomy. See generally Alice Haemmerli, Whose Who? The Case for a Kantian Right of Publicity, 49 Duke. L.J. 383 (1999); Mark McKenna, The Right of Publicity and Autonomous Self-Definition, 67 U. Pitt. L. 2 instances multiple rationales appear to underlie the same laws. For example, § 43(a) of the Lanham Act provides a cause of action for false endorsement available to celebrity plaintiffs as well as trademark holders.9 Yet a recent case saw the Ninth Circuit apply § 43(a) as a quasi-property right in a celebrity plaintiff’s likeness, thereby using a tool meant to address false endorsement to vindicate an incentives rationale for creating property rights in celebrity identities.10 Similarly, state right of publicity laws appear to draw on multiple rationales to justify their scope and protections. For instance, in most jurisdictions that recognize a right of publicity, the right is both assignable11 and descendible.12 Alienability is a feature of intellectual property regimes premised on an incentives rationale, akin to copyright.13 At the same time, very few (and perhaps no) courts limit the right of publicity to celebrities.14 Making the right of publicity available to non-famous people with no particular interest in becoming famous, and thus no need for an economic incentive to develop a particular persona or cultivate fame, makes the right look like a privacy right. Multiple overlapping rationales underlying the same legal regime come at a cost. Plaintiffs seeking to vindicate only a privacy interest can use tools designed to incentivize economic investment to obtain unnecessarily total control over the use of their identities. Celebrities can use doctrines originally meant to protect privacy to silence parody and criticism ordinarily protected by the First Amendment. Courts allowing plaintiffs to use the Lanham Act to protect a property interest in celebrity personas may create doctrines that bleed into other areas of trademark law, further propertizing what ought to be a consumer protection regime. In these and other situations, multiple, overlapping rationales for protecting rights in identity have the potential to lead to socially undesirable overprotection. This Paper argues that, while all three rationales have some role to play in the law’s protection of identity, cabining each rationale to a single doctrinal area would help properly limit the scope of the law’s protection. To do so, courts could take the oft-made analogy between the right of publicity and copyright to its logical conclusion, by Rev. 225 (2005). The right has also been justified on economic grounds distinct from the copyright-like incentives story, as necessary “to prevent the premature exhaustion of the commercial value of the celebrity’s name or likeness.” William Landes & Richard A.

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