Re: Advertising violations

On Tue, 23 Mar 1999, Bob Cumbow <cumbr[_at_]perkinscoie.com> wrote:
>
> I don't think a right of publicity "fair use" doctrine is necessary,
> since right of publicity, where it is recognized at all, is limited to
> COMMERCIAL uses of the name, image, likeness, etc. Thus any use of
> those for the purpose of news coverage, or in an expressive work, or to
> refer to the individual himself (rather than to evoke a suggestion of
> sponsorship or endorsement or to exploit the commercial value of his
> image) would be fair use already. Unfortunately, some overreaching
> plaintiffs and overprotective (or under-educated) courts make it
> necessary now to wonder whether this will remain a solely commercial
> right or not.
>

In fact, it has expanded beyond what the court means by "commercial speech" in the First Amendment context. For example, Martin Luther King's estate has a publicity right to control the selling of sculptures depicting him. This use may be "for profit," but it is not a "commercial" use in the First Amendment sense (meaning speech which proposes a commercial transaction).

Still, I agree with Bob that the right of publicity, *properly construed,* does not run afoul of the First Amendment.

Mark Lemley
<mlemley[_at_]mail.law.utexas.edu> Received on Wed Mar 24 1999 - 16:22:49 GMT