At the outset, I would be remiss if I didn’t thank Professor Shamnad Basheer and the rest of the SpicyIP team, for this opportunity as well as the magnanimous gesture of allowing me to be the first scholar in practice! I am humbled and grateful for this opportunity so a huge thank you once again! As Adam Burish said, “It’s not pressure, it’s excitement”.
Reveries of a Publicity Right
By now, most of our readers would be familiar with what a Right of Publicity is. In essence, a Right of Publicity prevents the unauthorized use of an individual’s name, likeness, voice, or other recognizable aspects of one’s persona. For example: If a company ran an advertisement using a famous celebrity’s doppelganger, thereby inducing the public to believe that the celebrity advocated the use of the product, that would be a violation of the celebrity’s personality rights. For the sake of this article, I should clarify that I will be using the term ‘personality rights’ and ‘the right of publicity’ interchangeably. Additionally, although statutory and common law publicity rights generally apply to all, publicity rights, as a practical matter, usually concern celebrities. With that short introduction out of the way, let’s delve right into some normative quagmires that the Right of Publicity gives rise to.
Right of Publicity: Black Sheep of IP
First, and perhaps foremost, is the Right of Publicity an Intellectual Property Right? The question isn’t merely semantics, neither should its answer appeal only to an esoteric few, because definition and classification presage characterization. Intellectual Property Rights are mostly justified on a utilitarian basis: Grant of a limited monopoly incentivizes individuals to create. (Note that I said mostly, I believe there exists other normative justifications; however this is the most predominant.)
The question then becomes does the Right of Publicity foster/incentivize individuals to create/invent? In other words, does the existence of a personality right, incentivize individuals to become celebrities in the same way that the existence of a patent incentivizes inventors to invent or content creators to create content? I’d love the link to the interview where Aamir Khan told us that his reason for becoming an actor was to actuate his innate personality right. I seriously doubt that anyone would decide not to become famous or to become a celebrity if the Right of Publicity was abolished (For more proof, look at all those celebrities who lead extravagant lives before the creation of a right of publicity.)
I’m not being flippant (Okay maybe a little) but I always thought that Intellectual Property was not an end in itself. It was a necessary right in order to further an end. Besides, unlike Copyright Law and Patent Law which directly correlates to the artist’s/inventor’s sustenance and livelihood, the right of publicity does not. In essence: Unless you have a copyright over your song, you won’t be paid for it, whereas irrespective of the presence of a personality right, you will be paid for acting in a movie/ playing for a sports team.
What about the Public?
Another glaring defect with the narrative that personality rights are Intellectual Property Rights is the lack of recognition of the role of the public in fostering and creating personality rights. In Patent Law, patents are required to be disclosed to the public, in order to acquire a monopoly. Even in Trademark Law, the public plays a huge role, right from determining if a mark is ‘famous’ and thus entitling the owners of the mark to a dilution claim, to constantly using the mark almost to a fault ( For the owners) in the form of genericide. The same should hold true for Personality Rights as well, for it is the public who determines whether a personality is indeed a “celebrity” or not. In other words, a dormant personality right implicit in every person is given life to, not only by the acts of the wannabe celebrity, but by the adoration and adulation of the public. If Michael Jordan was an extremely talented floor-ball player (Yes,that is a thing), it is doubtful he would have lead the life he did, because the public does not enjoy the sport the same way it does Basketball. As they say in marketing, eyeballs matter!
The ripple effect when someone is not a celebrity is profound. There would be no point in economically using a name/likeness without authorization if that person was not someone the public knew in the first place. For example if Coca Cola used my likeness to advertise their product, no one would recognize me, and no one would want to buy the product influenced by my likeness, which makes the entire endeavor moot. Fame, derived from public adulation (Or even loathing, like the Kardashians) is vital for exploitation of the personality right. So congruently, limitations on the personality right should keep in mind the public’s contribution to the creation of the right in the first place.
‘Hater’s gonna hate’
The point is, the lack of a comprehensive personality rights system, whose exceptions are as clearly defined as their boundaries, makes personality rights discordant with the IP regime. It is one thing to debate what types of limitations there should and shouldn’t be (Copying 20% of a book is okay, but 90% is not for example), but in the case of personality rights, the limitations are almost non-existent. As James Boyle states in his seminal book Public Domain: Enclosing the Commons of the Mind, “Monopoly is the exception and freedom is the rule—any limitations on that freedom have to be justified. That is why we always discuss the right and the limitations on the right as an inseparable pair. One cannot discuss them in isolation.” Therefore if at all, personality rights are to be subsumed into the Intellectual Property fold, it is important that clear well-defined exceptions are created to prevent personality rights from becoming a free speech smothering, competition squashing, public domain trampling right.
Two caveats at this point. First, I am not arguing for an abolition of personality rights as a whole, but merely that a personality right might not fit within the Intellectual Property regime. In fact, I wholeheartedly believe that a celebrity should be able to object to use of her name and/or likeness, under an unfair competition theory, if it is likely to create confusion with regard to whether she endorses the product she is associated with. Second, I understand that the language of Intellectual Property as it stands today includes personality rights, just like it includes the protection of databases, trade secrets, plant varieties, and even trademarks. I understand the analogy that just like how whales and mice are both mammals, different types of property rights are in fact intellectual property rights.
Questions questions everywhere, not a politician to think
However, the language of today doesn’t prevent me from fulminating against it. Additionally in arguendo, even if personality rights were incorporated into an IP regime, there are still multiple questions that need answering, each with the potential to be their own blogpost, like:
- Should the right of publicity extend post-mortem? In California it does, in New York it doesn’t. What about in India? If it does, should it extend for a period longer than Copyright post mortem or lesser? Does it devolve onto the heirs of the celebrity like another property right?
- Should there be a Celebrity registration system like a Copyright/Patent registration system, so that the public knows which celebrities are fine with usage of their images and which celebrities are not? Would there be an implicit waiver condition, whereby unless you register, your rights are deemed to be waived? Can a celebrity even waive his/her personality right if it is derived from the right to bodily autonomy? Or is that precisely why a personality right can be waived?
- In the era of social media, the definition of a “celebrity” has vastly changed, does personality rights law need to change with it? How would personality rights deal with something like “Twitterjacking”, in which a person hijacks the handle and user name of a celebrity and posts from a different account? What about parody accounts?
- Perhaps my favorite conundrum in personality rights law, is truth a defense to a claim of personality right violation? If Shahrukh Khan drank a particular brand of tea, and was photographed doing so, and the company ran an advertisement stating that Shahrukh Khan drank their brand, could he stop them from running the advertisement? In the final analysis, “an advertiser should be able to use a person’s name or likeness without consent as part of a truthful statement about a legitimate product”, right? Or would Shahrukh Khan be entitled to royalties? What about a non-economic/ moral relief like an injunction/apology?
Eventually, I do plan to write a sequel to this post, where I will address other questions like: what is the difference between a Lockean and Kantian Justification for personality rights, can personality rights be content neutral etc.
Complement this reading with:
- The Right of Publicity: A Doctrine Gone Wild?
- INTELLECTUAL PROPERTY LAW: The Right of Publicity and the Social Media Revolution
- Whose who: The Case for a Kantian Right of Publicity
Jon Snow: A Stark:: Right of Publicity: Intellectual Property i.e. yes, but doesn’t really fit.