Sheff on the Right of Publicity

Jeremy N. Sheff (St. John's University School of Law) has posted Scope & Justification of the Right of Publicity (Columbia Journal of Law & the Arts, Vol. 42, No. 333, 2019) on SSRN.  Here is the abstract: These transcribed symposium comments discuss various normative justifications for the right of publicity, including copyright-like incentive theories, trademark-like false endorsement theories, and theories resting on the moral claims of labor. I discuss how each of these theories is a poor fit for at least some and perhaps most right of publicity cases, particularly insofar as rights of publicity and rights of privacy have been lumped together but their respective justifications are not compatible. I further argue that such normative justifications founder when it becomes necessary to consider the proportionality of a right-of-publicity plaintiff's interest to legitimate interests of their defendants. Finally, I propose that the way to avoid these…

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