ABSTRACT
Both trademark and unfair competition laws and state right of publicity laws protect against unauthorized uses of a person’s identity. Increasingly, however, these rights are working at odds with one another, and can point in different directions with regard to who controls a person’s name, likeness, and broader indicia of identity. This creates what I call an ‘identity thicket’ of overlapping and conflicting rights over a person’s identity. Current jurisprudence provides little to no guidance on the most basic questions surrounding this thicket, such as what right to use a person’s identity, if any, flows from the transfer of marks that incorporate indicia of a person’s identity, and whether such transfers can empower a successor company to bar a person from using their own identity and, if so, when.
Part of the challenge for mediating these disputes is that both the right of publicity and trademark laws are commonly thought of as solely concerned with market-based interests. But this is not the case. As I have documented elsewhere, the right of publicity has long been directed at protecting both the economic and noneconomic interests of identity-holders. And, as I demonstrate here, it turns out that the same is true for trademark and unfair competition laws, which have long protected a person’s autonomy and dignity interests as well as their market-based ones …
Rothman, Jennifer E, Navigating the Identity Thicket: Trademark’s Lost Theory of Personality, the Right of Publicity, and Preemption (October 25, 2021). Harvard Law Review, volume 135, forthcoming 2022.
First posted 2021-11-30 17:00:11
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