Raising Walls Against Overlapping Rights: Preemption and the Right of Publicity

Rebecca Tushnet*

The right of publicity overlaps with trademark in its protections against false endorsement, with copyright in its (supposed) justifications in incentivizing performances, and with traditional privacy and defamation torts in protecting personal dignity and control over one’s own presentation of the self. Yet the right of publicity has been used to extend plaintiffs’ control over works and uses that don’t violate any of the rights with which it shares a justification. This quicksilver nature is what makes the right of publicity so dangerous.

The law of overlaps in the form of preemption cases might offer some assistance in suggesting a purposive approach. Where the state-law right of publicity has a similar purpose to that of copyright, it can conflict with that right and be preempted by federal law. Where the right of publicity’s purpose is different, however, the relevant purpose or purposes furthered should guide our analysis of the appropriate limits on the right. The fact that plaintiffs have renamed their claims should not enable them to extend their rights beyond the underlying justifications for those rights.

By comparing how preemption and First Amendment law have used purposive approaches to limit the right of publicity, we can see something about how boundary work in intellectual property law (IP) is done—badly, usually, with justifications that aren’t consistent or that assume that other regimes work differently than they actually do. One improvement would be to embrace categorical approaches, rather than unpredictable case-by-case balancing; both preemption and First Amendment doctrines can lend themselves to this approach. Another improvement would be to think of the First Amendment as an intellectual property regime of its own, one with general preemptive power. As Justice Brandeis said, the general rule is that ideas are “free as the air to common use,” subject to changes worked by positive law, but the First Amendment can prevent positive law from putting ideas or facts off-limits.¹

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© 2017 Rebecca Tushnet. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Professor of Law, Georgetown University Law Center.

1 Int’l News Serv. v. Associated Press, 248 U.S. 215, 250 (1918) (Brandeis, J., dissenting).