Jennifer Rothman, The Inalienability of the Right of Publicity
Comment by: Deven Desai
Published version available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2174646
Workshop draft abstract:
Publicity rights first developed in the heartland of privacy and tort law as a compensation scheme for injuries to personal dignity through the misappropriation of a person’s identity. Today, however, the right of publicity is most often situated as a robust property right. Some courts and scholars have avoided classifying publicity rights as property-based, but have done so only because they say it does not matter whether publicity rights are tort or property-based. This article contends that the difference does matter. Tort-based rights are personal, non-assignable, and cannot be sold to satisfy court judgments. Property rights, however, are assignable and can be sold to satisfy court judgments. Despite the opportunity for individuals to assign in total their publicity rights, courts are uncomfortable with truly divesting an individual of control over his or her identity. One recent example arose when the Goldman estate sought not only to obtain the profits from O.J. Simpson’s publicity rights, but also to affirmatively control the use of his right of publicity. If publicity rights are property rights, such control seems uncontroversial. Nevertheless, taking away Simpson’s control over his own identity challenges the underlying autonomy-based justifications for publicity rights and more generally our commitment to individual liberty. This article will therefore suggest that publicity rights remain privacy-based torts. Resituating publicity rights in tort law will provide a basis for more appropriate limits on both the alienability and scope of publicity rights.