Dustin Marlan, ‘Unmasking the Right of Publicity’

In the landmark case of Haelan Laboratories v Topps Chewing Gum, Judge Jerome Frank articulated the modern right of publicity. The right is now most often seen to protect the strictly commercial value of one’s ‘persona’ – the Latin-derived word originally meaning the mask of an actor. Among other criticisms, the right of publicity is frequently accused of lacking a coherent justification, permitting only economic redress against public harms to the persona, and stripping away individual identity by allowing for an alienable, proprietary right in one’s personality. Why might Judge Frank have been motivated to create a transferable intellectual property right in the monetary value of one’s persona distinct from the psychic harm to feelings, emotions, and dignity protected under the rubric of privacy? …

Marlan, Dustin, Unmasking the Right of Publicity (December 13, 2018).

First posted 2019-01-02 06:22:42

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