Article by Pamela Samuelson
The right of publicity—the right of a person to control and benefit from the commercial value of his name, likeness, performance style, and the like—is a newly emerging basis for tort actions. As such, its boundaries, including what defenses may properly be asserted in an action to enforce publicity rights and what standards are to be used in analyzing these defenses, are not yet defined.
In several cases in the past five years, defendants have brandished the first amendment as a shield against liability for interference with the plaintiff's publicity rights. Courts have tried a number of approaches to analyzing first amendment issues in publicity cases. Both in their modes of analysis and their outcomes, the cases are in considerable conflict with one another and with the one Supreme Court opinion in the area. For the most part, courts faced with first amendment defenses in publicity cases have ignored the manner in which similar issues have been resolved in cases involving similar types of intangible rights.
The potential for conflict between the exclusive rights asserted by the owner of an intangible property right and the desire of another to use the property arises in copyright as well as in publicity cases. Defendants in copyright cases have sometimes raised first amendment defenses when seeking to be excused from an appropriation of copyrighted material, but, more often, they have sought exemption from liability by arguing that their particular use of the material was a “fair” one under the circumstances. Frequently, both defenses have been raised.
Factors that courts in copyright cases have historically considered in deciding whether a particular use was “fair” have been the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the taking, and the effect of the use on the potential market for the copyrighted work. Under the “fair use” defense, satires of copyrighted works, scholarly research incorporating parts of copyrighted works, and similar uses have received protection from infringement suits. Courts sometimes avoid deciding constitutional defenses in infringement suits because an exemption can be granted on fair use grounds. Even when courts must reach the constitutional defenses, the fair use analysis is helpful, because it aids in assessing the substantiality of interference with the copyrights as part of the balancing of interests in a first amendment analysis. Finally, copyright cases have developed a standard for deciding when the first amendment will provide protection for a taking that is not a fair use.
An adaptation of the copyright “fair use” defense in publicity cases would be a sound development in publicity law. As in copyright law, it may be possible for courts to resolve exemption claims on fair use rather than on constitutional grounds. If a use is found to be unfair, the copyright law standard can be used to assess whether the first amendment should nonetheless protect it.
Section II below describes the controversy concerning the nature of publicity rights and argues for the treatment of publicity rights in much the same manner as copyrights. Section III reviews several approaches courts have taken in analyzing the first amendment defenses raised in many publicity cases. Section IV reviews how conflicts between enforcement of the exclusive right and the desire for free access are handled in copyright cases, focusing particularly on those cases in which both fair use and first amendment defenses have been raised. Section V proposes a new analysis for first amendment defenses in right of publicity cases.
About the Author
Pamela Samuelson. Assistant Professor of Law, University of Pittsburgh School of Law; J.D. 1976 Yale Law School; M.A. 1972, B.A. 1971 University of Hawaii.
Citation
57 Tul. L. Rev. 836 (1983)