ABSTRACT
… Ample literature on law and economics suggests that overprotection of property rights leads to suboptimal outcomes. Likewise, if tort law overprotects public personalities’ exclusive right to publicize their name or likeness, then the incentive to build their personal brand value may be inefficiently high. But public renown does not come from thin air. A personal brand is built by commodifying consumers’ time and attention. Accordingly, overprotecting the exclusive right to publicize one’s name or likeness may feed advertisers’ appetite for consumer attention. This Comment argues that tort damages in an appropriation of name or likeness action should be limited to the fair market value of the use. This would mitigate windfalls to plaintiffs, thereby easing the incentive to commodify consumer time and attention. Further, this Comment argues that, in rare instances where an excessive award might be merited, such actions are better suited for a different privacy tort.
Benjamin T Pardue, You Are Not a Commodity: A More Efficient Approach to Commercial Privacy Rights 96 Washington Law Review 1567 (2021).
First posted 2022-01-10 17:00:58
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