They're talking dollars. As Jack Benny would say, dollars.
-- New York State Senator Emanuel Gold, referring to proponents
of a proposed publicity rights law. n31
Contemporary proponents of the right of publicity have, in the
main, exhibited surprisingly little interest in the basic question
of justification.n32 The predominant tone in
both the case law and the academic writing in this regard is impatient,
even at times bullying -- as if only a fool or a prig would insist
on an elaborate or arduous demonstration. Some seem content to
rest upon an unanalyzed intuitive sense that a celebrity's persona
simply is her "property," that if there is a "natural
right" to any property, then this must surely be it. In a
similar vein, Professor McCarthy, the author of the standard treatise
on the subject, characterizes the right of publicity as "a
self-evident legal right, needing little intellectual rationalization
to justify its existence."n33 That celebrities
should have exclusive control of the commercial use of their identities,
McCarthy says, is simply "commonsensical."n34
"[O]ne wonders what all the fuss is about."n35
The nonchalance of this appeal to "common sense" is
rather astonishing. "Common sense," after all, is not
a faculty by which we can learn how matters are, much less how
they should be. All we can learn through common sense, as Stuart
Hall reminds us, is where something fits into "the existing
scheme of things."n36 What appears to
be "common sense" may be nothing but the particular
view of a matter that most strongly supports and expresses the
interests of powerful social groups, or that fits most snugly
with other deeply rooted and unexamined beliefs.n37
That aside, there are good reasons to demand a full and persuasive justification for publicity rights. The first is the fact that the right of [*137] publicity redistributes wealth upwards. Whether or not the "principal danger to a just society today" is, as Richard Delgado tentatively suggests, the "purposeful enrichment" by the government of those "at the top,"n38 governmental actions that make the rich richer surely demand very compelling justification. Why, we may properly ask, should the law confer a source of additional wealth on athletes and entertainers who are already very handsomely compensated for the primary activities to which they owe their fame?n39 The actor Arnold Schwarzenegger, for example, reportedly collected $ 10 million for his role in the movie Total Recall.n40 Ryne Sandberg recently signed a multiyear contract with the Chicago Cubs that pays him an average annual salary of $ 7.1 million.n41 Is that not enough, or even too much? Why should the law give entertainers and athletes a legal right that funnels still more money their way? Why not instead treat a famous person's name and face "as a common asset to be shared, an economic opportunity available in the free market system"?n42 There may well be a satisfactory answer to these questions, but if so, its name is certainly not "common sense."
But that is not all. There is still another -- and, to my mind,
far [*138] more important -- reason why an appeal to "common
sense" will not suffice here: publicity rights facilitate
private censorship of popular culture. In order to see how this
is so, and to appreciate why it is cause for serious concern,
we need first to place the "right of publicity" issue
in the context of a wider academic debate about the nature and
distribution of cultural power in contemporary American society.
Only then will we be in a position to see why "we're talking"
much more than "dollars" here.
Since the early part of this century, when the entertainment industries
emerged as large-scale capitalist enterprises, cultural power
-- the power to make and circulate meanings, values, and symbolic
forms -- has been steadily commercialized and centralized.n43 Popular culture is no longer, if it ever was,
"a spontaneous, autochthonous expression of the people,"n44 shaped out of their own material and discursive
resources to suit their own needs and interests. The dominance
of global entertainment and media conglomerates has instead made
popular cultural practice predominantly a matter of consumption.n45 These developments have generated a lively
and fascinating contemporary debate between "cultural pessimists"
and "cultural populists" about the nature and distribution
of cultural power in contemporary society.n46
"Cultural pessimists," who owe much to the seminal work
of the Frankfurt School theorists, n47 see
mass-mediated popular culture as a field in which dominant, repressive
(in other words, consumerist, patriarchal, [*139] etc.) meanings
are systematically reproduced and reinforced.n48
In their view, commodities produced and distributed by the culture
industries dissolve, or at least conceal, social difference and
conflict. "Cultural populists,"*
in contrast, generally view popular culture as contested terrain
in which individuals and groups (racial, ethnic, gender, class,
etc.) struggle, albeit on unequal terms, to make and establish
their own meanings and identities. As the populists see things,
the consumers of cultural commodities (movies, songs, fashions,
television programs, etc.) neither uniformly receive nor uncritically
accept the "preferred meanings"n50
that are generated and circulated by the culture industry. To
varying degrees, depending on their social location and sophistication,
consumers "resist" or even subvert these meanings. They
"recode" cultural and even industrial commodities in
ways that better serve their particular needs and interests, and
"rework" them to express meanings different from the
ones intended or preferred by their producers.
A full assessment of these rival positions is beyond the scope
of this Article. The "populists" seem right to me, however,
on several points that bear directly on the "right of publicity"
issue. First, despite the dominance of global entertainment conglomerates,
popular culture is not [*140] simply something that is "fabricated
by technicians hired by businessmen"n51
and then imposed from above upon a passive, atomized, and uncritical
populace. As Stuart Hall put it, the consumers of cultural commodities
are not all "cultural dopes."n52
Their participation is not "limited to the choice between
buying and not buying."n53 Instead, the
consumption of cultural commodities can be, and often is, an active,
creative practice, in which the "consumer" appropriates
the product by investing it with (new) meaning. There is, as Paul
Willis has shown, a "realm of living common culture"
in which individuals and groups use cultural and industrial commodities
creatively to do "symbolic work" and thereby "establish
their presence, identity, and meaning."n54
To be sure, there are significant constraints on this popular
meaning-making. Individuals and groups must do this symbolic work
with centrally produced and distributed commodities. They must
make their culture out of these commodities, for there are no
other material or discursive resources available to them.n55
What is more, the instability or volatility of meaning must not
be overstated.n56 The products or "texts"
of the culture industries (films, television programs, music,
fashion, stars, etc.) do generally come with "preferred"
meanings already structured into them, meanings that often serve
or reflect the interests of dominant groups. Against-the-grain
readings of such texts may be very difficult to mount or sustain.
The economic and ideological dominance of the culture industries
thus significantly "limits the spaces and forms available
for alternative or oppositional cultural practice."n57
But within these constraints, [*141] individuals and groups do
participate actively in the process of generating and circulating
meanings that constitutes "culture." While our culture
is far from a perfect democracy, it is more participatory and
open-textured than the bleakest contemporary followers of Adorno
and Horkheimer allow.n58
The "populists" also get the better of the argument
on another important point: the so-called "national audience"
for mainstream cultural products is in reality composed of a large
number of overlapping subgroups and subcultures structured along
racial, ethnic, gender, generational, occupational, and other
lines. These groups have their own histories, experiences, interests,
and cultural competencies, which they bring to bear in the consumption
(that is, the reception and appropriation) of cultural commodities.n59 For this reason, popular culture remains what
it long has been: a struggle for, and over, meaning. It is a contest
in which dominant groups try to naturalize the meanings that best
serve their interests into the "common sense" and "taste"
of society as a whole, while subordinate and marginalized groups
resist this process with varying degrees of effort and success.n60 The contest is one in which the culture industries
hold most of the cards, but in which there is some space for even
relatively powerless groups and subcultures to generate or negotiate
meanings that relate to their own experiences and positions and
that serve their own interests better than does the dominant ideology.
It is impossible, I think, for the law to remain neutral in this
contest. The law can strengthen the already potent grip of the
culture industries over the production and circulation of meaning,
or it can facilitate popular [*142] participation, including participation
by subordinate and marginalized groups, in the processes by which
meaning is made and communicated. The law can accelerate the already
powerful trend toward centralized, top-down management of popular
culture, or it can fight a rearguard (and perhaps futile) action
on the side of a more decentralized, open, democratic cultural
practice. Whether self-consciously or not, contemporary American
intellectual property law has tended to throw its weight on the
side of centralized cultural production.
In recent decades, as David Langen61 and a
few other writersn62 have observed, the law
has moved more and more of our culture's basic semiotic and symbolic
resources out of the public domain and into private hands. Consider,
for example, the way in which antidilution doctrine is increasingly
being used to enable corporations to manage their public personas
and immunize them from oppositional recoding.n63
Or consider the recent "Gay Olympics" case,n64
in which the United States Supreme Court upheld the right of the
United States Olympic Committee to prohibit a nonprofit gay rights
organization from using the word "Olympic" to designate
its own athletic competition, even in the absence of any likelihood
of consumer confusion or deception.n65
The same centralizing process has been at work in the right of
publicity area. The judicial and academic rhetoric on publicity
rights makes reference to "economic incentives," "natural
rights," and "unjust enrichment." The subtext,
however, is control over the production and circulation of meaning
in our society. This is so because star images are widely used
in contemporary American culture to create and communicate meaning
and identity. The fact that the culture and advertising industries
routinely and systematically use celebrity images in this way
should be obvious enough. Indeed, it is only because celebrity
images carry and provoke meaning that they can enhance the marketability
of the commodities with which they are associated.n66
Their "associative" or "publicity" [*143]
value derives from their semiotic power. What is somewhat less
obvious is that individuals and groups also use star signs in
their everyday lives to communicate meanings of their own making.
They make active and creative use of celebrity images to construct
themselves and their social relations, to identify themselves
as individuals and as members of subcultural groups, and to express
and communicate their sense of themselves and their particular
experience of the world. Indeed, celebrity images are among the
basic semiotic and symbolic raw materials out of which individuals
and groups "establish their presence, identity and meaning."n67
This is especially clear in the case of groups that are outside
the cultural mainstream. Richard Dyer has observed that particularly
intense audience-star relationships occur among groups such as
adolescents, women, and gays, who experience extreme "role/identity
conflict and pressure, and an (albeit partial) exclusion from
the dominant articulacy of, respectively, adult, male, heterosexual
culture."n68 Dyer shows, for instance,
how urban gay men in the 1950s seized on the image of Judy Garland
as a powerful means of speaking to each other about themselves.n69 Along the same lines, Rosemary Coombe has
drawn our attention to the way in which "celebrity images
provide the cultural resources which those in marginalized groups
use to construct alternative gender identities."n70
She notes, by way of example, that James Dean provides contemporary
lesbians "with an icon which may embody a challenge to dominant
understandings of the causal connections between biology, anatomy,
desire, and sexual practice."n71
It is not just the members of marginalized groups, however, who
draw on the celebrity image bank to define and identify themselves,
or to express their sense of themselves and their particular experience
of the world. Everyone from the President on downn72
does it to some extent, often through the consumption and display
of celebrity paraphernalia: T-shirts, posters, greeting cards,
etc. When we buy, exchange, and display cultural commodities of
this kind, we "are actively contributing to the social circulation"
of meanings about the celebrity.n73 "The
choice of which Madonna T-shirt to buy," as John Fiske has
noted, "is a choice about which meanings of Madonna to circulate."n74 It is a consumption decision in the first
instance, yet it is also something more.
[*144] An example may help to sharpen the point.n75
A few years ago, a bill was introduced in the New York Legislature
to create a broad and descendible right of publicity.n76
During hearings on the bill, some of the testimony referred to
a greeting card, said to be sold chiefly in gay bookstores. The
card bears a picture of John Wayne, wearing cowboy hat and bright
red lipstick, above the caption, "It's such a bitch being
butch."n77 Wayne's children, among others,
objected to the card not only on the ground that its sellers were
making money from The Duke's image -- money that should go to
them, or, in this case, to the charity of their choosing.n78
They objected also, indeed primarily, because in their view the
card was "tasteless" and demeaned their father's (hard-earned)
conservative macho image.n79 To his children,
as to most of his fans, "John [*145] Wayne" epitomizes
traditional America's mythic and idealized view of itself, its
history, and its national character. What Wayne stands for --
what his image means in the mainstream cultural grammar -- is
rugged individualism, can-do confidence, physical courage, and
untroubled masculinity. That is the "preferred meaning"n80 of "John Wayne." It was on this
preferred meaning that President Bush drew easily and effectively
in communicating his military plans in the Gulf.n81
It is on that meaning, too, that Wayne Enterprises drew when it
licensed the Franklin Mint to sell (for $ 395) a "serially
numbered, non-firing" replica of the .45-caliber automatic
pistol that Wayne "carried in so many great military films."n82
Nevertheless, against-the-grain readings of John Wayne are also
possible. For instance, in a course on how to survive as a prisoner
of war, the U.S. Navy uses the term "John Wayning it"
to mean trying foolishly to hold out against brutal torture. The
particular greeting card that Wayne's children and others objected
to so strenuously represents an even more subversive inflection
of Wayne's image. The card uses his image to interrogate and challenge
mainstream conceptions of masculinity and heterosexuality. It
recodes Wayne's image so as to make it carry a cultural meaning
that presumably works for gay men, among others, but which Wayne's
children (and no doubt many of his fans) find deeply offensive.
If the New York Legislature were to make John Wayne's right of
publicity descendible, however, it would confer on Wayne Enterprisesn83 the power to determine that this particular
appropriation of the John Wayne image is "illegitimate,"
and to enforce that determination by denying a license to the
greeting card maker. Wayne Enterprises would henceforth have the
power to fix, or at least try to fix, the meaning that "John
Wayne" has in our culture: his meaning for us.
What it comes down to, then, is that the power to license is the
power to suppress. When the law gives a celebrity a right of publicity,
it does more than funnel additional income her way. It gives her
(or her assignee) a substantial measure of power over the production
and circulation of meaning and identity in our society: power,
if she so chooses, to suppress readings or appropriations of her
persona that depart from, challenge, or subvert the meaning she
prefers; power to deny to others the use of her persona in the
construction and communication of alternative [*146] or oppositional
identities and social relations; power, ultimately, to limit the
expressive and communicative opportunities of the rest of us.
The result is a potentially significant narrowing of the space
available for alternative cultural and dialogic practice. Publicity
rights, in other words, move us even further away from what John
Fiske has called a "semiotic democracy"n84
-- a society in which all persons are free and able to participate
actively, if not equally, in the generation and circulation of
meanings and values.
The censorial potential inherent in the right of publicity is
perhaps not reason enough to reject it tout court. After all,
it is possible that this power will be used very sparingly --
although what evidence there is on this score provides little
reason for optimism.n85 It is also possible
that the law does not bite very hard or deep here, that while
the existence of publicity rights deters or stifles some popular
cultural production and prevents some representational practices,
"social semiosis continues in spite of it."n86
It should, however, be up to the proponents of publicity rights
to demonstrate that this is so. Absent such a demonstration, the
risk of censorship and, perhaps more importantly, of self-censorship
makes the burden of justification a substantial one. It falls
to the proponents of publicity rights to explain why the risk
is worth running. Appeals to "common sense" will not
suffice here, nor will vague assurances that the First Amendment
can be relied on to safeguard legitimate interests in expression.n87 Proponents of the right of publicity should
be [*147] required to make a clear and convincing showing that
important interests will be served by recognizing a property right
in a celebrity's identity. In Part III, we shall see that no such
showing has yet been made. First, however, we need to understand
the forces, material and ideological, that have brought forth
the right of publicity.
n31 Hearing to Discuss the Celebrity Rights Act Before the N.Y. State Senate 8 (Feb. 25, 1988) (Upstate Reporting Serv.) (transcript on file with author) [hereinafter 1988 Hearing]. State Senator Gold is the sponsor of a bill that would create a broad and descendible right of publicity in New York. See S. 6843, 1988-1989 N.Y. Reg. Sess. For an account of the background of this bill, see infra note 76.
n32 A notable exception is Tim Frazer, Appropriation of Personality -- A New Tort?, 99 LAW Q. REV. 281 (1983). Lawrence Becker makes a useful distinction among three different kinds or levels of justification of property rights. See LAWRENCE C. BECKER, PROPERTY RIGHTS: PHILOSOPHIC FOUNDATIONS 22-23 (1977). A "general justification of property rights gives an answer to the question of why there ought to be any property rights -- of any sort -- at all." Id. at 23. A "specific justification" provides an answer to the question "why there ought to be a specific sort of property right," such as copyright or "full, liberal" ownership of land. Id. A "particular justification" is one which "gives an answer to the question of why a particular person ought to have a particular property right in a particular thing." Id. This Article is concerned only with the second kind of justification.
n33 MCCARTHY, supra note 13, § 1.1[B][2], at 1-5.
n35 Id.; see also id. § 2.1[B] ("The advocate of a Right of Publicity, when called upon to explain why such a right should exist at all, is not being illogical in simply challenging: 'Why not?'"). To be fair, McCarthy devotes the second chapter of his treatise to the "policy reasons" advanced by courts and commentators in support of a right of publicity. But the impression is unmistakable that he regards such argument as essentially supererogatory.
n36 Stuart Hall, Culture, the Media, and the "Ideological Effect" (1977), quoted in DICK HEBDIGE, SUBCULTURE: THE MEANING OF STYLE 11 (1979).
n37 Indeed, it is likely that the right of publicity seems "obvious" or "commonsensical" to McCarthy and others largely because the dominant folklore of celebrity -- from which the publicity right draws its primary rhetorical force and moral appeal -- is part of a larger cultural mythology about the possibilities for, and rewards of, originality and individual achievement in our society. See infra text accompanying notes 339-49.
n38 Richard Delgado, Inequality "from the Top": Applying an Ancient Prohibition to an Emerging Problem of Distributive Justice, 32 UCLA L. REV. 100, 118 (1984) (urging revitalization of the Antinobility Clauses of the Constitution as a way of dealing with governmental actions that concentrate wealth, privilege, and power in small and select groups).
n39 Strictly speaking, everyone, obscure as well as famous, "has" a right of publicity -- a property right in the economic value of her identity. See MCCARTHY, supra note 13, § 4.3[G] (arguing that since line-drawing is impractical, every person should have a right of publicity); Nimmer, supra note 13, at 217 (same). But see authorities cited in MCCARTHY, supra note 13, § 4.3[B], at 4-13 n.1 (supporting minority view that noncelebrities have no publicity right). As a practical matter, however, as Nimmer himself conceded, the right of publicity "usually becomes important only when the plaintiff (or potential plaintiff) has achieved in some degree a celebrated status."nimmer, supra note 13, at 216. This is because the damages recoverable for infringement of the right depend on the commercial value of the publicity that has been appropriated, and thus on the plaintiff's "degree of fame." Id. at 217. Very rarely will the economic value of a noncelebrity's identity be sufficient to support a lawsuit for infringement. (If what the noncelebrity seeks is injunctive relief, then he will not need to invoke his right of publicity; his right of privacy should suffice.) Moreover, as we shall see below, the right of publicity was consciously devised by courts and commentators to meet what were perceived as the special needs of celebrities. See infra text accompanying notes 208-40. In short, while universal in form, the right of publicity is in reality a special celebrity right. Any attempt to justify the right of publicity must reckon with that fact -- and with the fact that while fame may be somewhat more democratic and evanescent nowadays than it used to be, some people are much more famous than others, and some people just aren't famous at all. As Michael Walzer writes:
MICHAEL WALZER, SPHERES OF JUSTICE 255 (1983).
n40 Geraldine Fabrikant, The Hole in Hollywood's Pocket, N.Y. TIMES, Dec. 10, 1990, at D1.
n41 See Murray Chass, Sandberg Becomes Highest-Paid Player, for Now, N.Y. TIMES, Mar. 3, 1992, at B11.
n42 Memphis Dev. Found. v. Factors Etc., Inc., 616 F.2d 956, 960 (6th Cir.), cert. denied, 449 U.S. 953 (1980).
n43 See Stuart Hall, Notes on Deconstructing "The Popular," in PEOPLE'S HISTORY AND SOCIALIST THEORY 227, 233 (Raphael Samuel ed., 1981) (arguing that the process of cultural production and distribution is now concentrated "in the heads of the few").
n44 Dwight MacDonald, A Theory of Mass Culture, in MASS CULTURE: THE POPULAR ARTS IN AMERICA, supra note 4, at 59, 60.
n45 Judith Williamson has put this point nicely:
JUDITH WILLIAMSON, CONSUMING PASSIONS: THE DYNAMICS OF POPULAR CULTURE 230 (1985); see also STUART EWEN, ALL CONSUMING IMAGES: THE POLITICS OF STYLE IN CONTEMPORARY CULTURE (1988); STUART EWEN & ELIZABETH EWEN, CHANNELS OF DESIRE: MASS IMAGES AND THE SHAPING OF AMERICAN CONSCIOUSNESS (1982).
n46 For a judicious discussion, see John Clarke, Pessimism Versus Populism: The Problematic Politics of Popular Culture, in FOR FUN AND PROFIT: THE TRANSFORMATION OF LEISURE INTO CONSUMPTION 28, 28-44 (Richard Butsch ed., 1990). The terms I use in the text to identify the rival positions -- "cultural pessimism" and "cultural populism" -- are borrowed from Clarke. Id. at 30, 34.
n47 See, e.g., Adorno & Horkheimer, supra note 8. The central claim of this very influential essay is that the commodification of culture brought about by the rise of the entertainment industries has divested art of its traditional autonomy and critical power. According to Adorno and Horkheimer, the standardized mass entertainment products of the culture industries operate to distract people from the alienation and drudgery of capitalist work relations and to implant meanings that reinforce the dominant ideology.
n48 For an example of this position, see EWEN & EWEN, supra note 45; see also EWEN, supra note 45; HERBERT I. SCHILLER, CULTURE, INC.: THE CORPORATE TAKEOVER OF PUBLIC EXPRESSION (1989).
n49 The leading exponents of this view are writers associated with or influenced by the British "cultural studies" movement. See, e.g., IAIN CHAMBERS, POPULAR CULTURE: THE METROPOLITAN EXPERIENCE (1986); JOHN FISKE, READING THE POPULAR (1989) [hereinafter FISKE, READING THE POPULAR]; JOHN FISKE, TELEVISION CULTURE (1987) [hereinafter FISKE, TELEVISION CULTURE]; JOHN FISKE, UNDERSTANDING POPULAR CULTURE (1989) [hereinafter FISKE, UNDERSTANDING POPULAR CULTURE]; HEBDIGE, supra note 36; ANDREW ROSS, NO RESPECT: INTELLECTUALS AND POPULAR CULTURE (1989); PAUL WILLIS ET AL., COMMON CULTURE: SYMBOLIC WORK AT PLAY IN THE EVERYDAY CULTURES OF THE YOUNG (1990). A good brief introduction to the main themes of this movement is John Fiske, British Cultural Studies and Television, in CHANNELS OF DISCOURSE: TELEVISION AND CONTEMPORARY CRITICISM 254 (Robert C. Allen ed., 1987) [hereinafter Fiske, British Cultural Studies]. For a comprehensive critical appraisal of the cultural studies movement, see JIM MCGUIGAN, CULTURAL POPULISM (1992).
n50 This term has its origin in a seminal essay by the British writer Stuart Hall. See Stuart Hall, Encoding/Decoding, in CULTURE, MEDIA, LANGUAGE 128, 134-39 (Stuart Hall et al. eds., 1980). Hall starts from the post-structuralist premise that "meaning" is not an inherent property of a cultural text or object. Television programs, for example, do not have a single meaning; they are relatively open texts, capable of being "read" in different ways by different people. According to Hall, however, television programs (and other cultural products) generally do "prefer" a set of meanings that serves to strengthen the "dominant" ideologies. Viewers whose social location, particularly their class location, aligns them with the dominant ideology, will -- Hall argues -- tend to accept the "preferred" meaning. But some viewers, whose social position sets them in direct opposition to the dominant ideology, will resist the program's preferred meaning and instead produce what Hall calls an "oppositional" reading. They will "inflect" or "recode" the program in such a way that it serves their own particular needs and interests. Throughout this Article I use "preferred" and "oppositional" meaning/reading in roughly this manner, without intending thereby to endorse Hall's view that class location is the primary determinant of how cultural products are "read."
n51 MacDonald, supra note 44, at 60.
n52 Hall, supra note 43, at 232.
n53 MacDonald, supra note 44, at 60.
n54 WILLIS ET AL., supra note 49, at 1; see also CHAMBERS, supra note 49, at 53-54 (showing how urban street "style" is achieved through the creative bricolage of ordinary commodities); HEBDIGE, supra note 36, at 2-4, 18 (examining how British youth subcultures -- mods and rockers, skinheads and punks-appropriate ordinary commodities and invest them with meanings that express, in a kind of private subcultural code, their "resistance" to the dominant order of things). Lawrence Grossberg has coined the useful term "excorporation" -- the antithesis of the Frankfurt School's "incorporation" -- to identify the way in which subordinate groups take the products of the culture industries, turn them against their producers, and use them in a resisting discourse. See Lawrence Grossberg, Another Boring Day in Paradise: Rock and Roll and the Empowerment of Everyday Life, 4 POPULAR MUSIC 225, 232 (1984).
n55 See FISKE, UNDERSTANDING POPULAR CULTURE, supra note 49, at 15.
n56 It is crucial, I think, not to exaggerate the volatility of meaning or the "effectivity" of audience resistance. Some "cultural populists," John Fiske among them, manage to find traces of "subversion" almost everywhere they look -- in street style and soap operas, in video game arcades and window shopping at the mall. For criticism on this score, see SCHILLER, supra note 48, at 148-56; Clarke, supra note 46, at 41-42 (arguing that the material and ideological dominance of the culture industries limits the space available for alternative and oppositional cultural practice). Cf. Jennifer Wicke, Postmodern Identity and the Legal Subject, 62 U. COLO. L. REV. 455, 471 (1991) (criticizing what she calls "resistance postmodernism" for its "overinvestment in discursive gestures" and for "the often fatuous assumption that . . . the decentering of a discourse in some purely symbolic way sends shock waves to the heart of social domination").
n57 Clarke, supra note 46, at 41.
n58 A fundamental problem with Adorno and Horkheimer's work on mass culture is that it not infrequently lapses into what John Thompson has called the "the fallacy of internalism." THOMPSON, supra note 4, at 105 (emphasis omitted). That is, Adorno and Horkheimer make the mistake of thinking that the effects cultural products have on people can simply be "read off" the products themselves. As Thompson argues, this ignores the fact that "[t]he reception and appropriation of cultural products is a complex social process which involves an ongoing activity of interpretation and the assimilation of meaningful content to the socially structured background characteristics of particular individuals and groups." Id. It follows that the only way to determine what effects these cultural products have on their audiences is to examine those effects empirically. For some recent research efforts along these lines with respect to television programming, see sources cited infra note 59.
n59 This has been borne out by a substantial body of empirical and ethnographic literature showing that different social and national groups produce different meanings from the same television programs. See, e.g., IEN ANG, WATCHING DALLAS: SOAP OPERA AND THE MELODRAMATIC IMAGINATION (Della Couling trans., 1985) (1982) (studying Dutch viewers of the television series Dallas); DAVID MORLEY, THE "NATIONWIDE" AUDIENCE: STRUCTURE AND DECODING 137-47 (British Film Inst. Television Monograph No. 11, 1980) (using an open interview approach to demonstrate a wide range of audience responses to a single television program); Elihu Katz & Tamar Liebes, Once upon a Time in Dallas, INTERMEDIA, May 1984, at 28 (study of ethnic audiences of Dallas). This literature is summarized in FISKE, TELEVISION CULTURE, supra note 49, at 62-83. See also SONIA M. LIVINGSTONE, MAKING SENSE OF TELEVISION 43-49 (International Series in Experimental Social Psychology Vol. 18, 1990).
n60 See Fiske, British Cultural Studies, supra note 49, at 255; Hall, supra note 43, at 227-28.
n61 See Lange, supra note 26, at 171 (expressing concern that contemporary intellectual property law is choking off access to the "public domain").
n62 See GAINES, supra note 28, at 232-39 (arguing that current intellectual property law may be curtailing popular cultural production); Coombe, supra note 28, at 1855 (arguing that in the current climate, "intellectual property laws stifle dialogic practices -- preventing us from using the most powerful, prevalent, and accessible cultural forms to express identity, community, and difference"); Wendy J. Gordon, On Owning Information: Intellectual Property and the Restitutionary Impulse, 78 VA. L. REV. 149, 156-57 (1992) (observing that the recent judicial trend toward recognizing new intellectual property rights "sometimes may interfere impermissibly with the autonomy of others and with efforts by individuals to achieve cultural self-determination").
n63 See Coombe, supra note 28, at 1869-77.
n64 San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522 (1987).
n65 Id. at 535-41. For insightful criticism, see Robert N. Kravitz, Trademarks, Speech, and the Gay Olympics Case, 69 B.U. L. REV. 131, 166-84 (1989) (criticizing the decision for undervaluing interests in free expression).
n66 See infra text accompanying notes 279-84.
n67 WILLIS ET AL., supra note 49, at 1.
n68 Richard Dyer, Charisma, in STARDOM: INDUSTRY OF DESIRE 57, 59 (Christine Gledhill ed., 1991).
n69 See RICHARD DYER, HEAVENLY BODIES: FILM STARS AND SOCIETY 141-94 (1986).
n70 Coombe, supra note 28, at 1876.
n72 See supra text accompanying note 6.
n73 FISKE, UNDERSTANDING POPULAR CULTURE, supra note 49, at 174.
n75 While the specific example I have chosen involves a deceased celebrity, nothing of consequence turns on that fact.
n76 See S. 5053-A, A. 8050-A, 1989-1990 N.Y. Reg. Sess. The impetus for this legislative proposal was the decision of the New York Court of Appeals in Stephano v. News Group Publications, Inc., 474 N.E.2d 580 (N.Y. 1984). There, the court held that, contrary to a line of federal court decisions in diversity cases going back to 1953, no common law right of publicity exists in New York. Celebrities seeking relief against unauthorized commercial appropriation of their personalities must proceed under the state's privacy statute, which is codified as §§ 50, 51 of the New York Civil Rights Law. Id. at 584. The protection that these provisions grant to celebrities, however, is narrower than the common law right of publicity in several respects. First, §§ 50, 51 reach only unauthorized advertising or trade use of a "name, portrait, or picture,"n.Y. CIV. RIGHTS LAW §§ 50, 51 (McKinney 1976 & Supp. 1992), whereas the common law right of publicity encompasses a variety of other identifying characteristics, see Tin Pan Apple, Inc. v. Miller Brewing Co., 737 F. Supp. 826, 837-38 (S.D.N.Y. 1990) (use of a sound-alike does not violate §§ 50, 51); Allen v. National Video, Inc., 610 F. Supp. 612, 624 (S.D.N.Y. 1985) (use of a look-alike does not violate §§ 50, 51 unless "most persons who could identify an actual photograph of [the celebrity] would be likely to think that this was actually his picture"); Lombardo v. Doyle, Dane & Bernbach, Inc., 396 N.Y.S.2d 661, 664-65 (App. Div. 1977) (bandleader's public personality as "Mr. New Year's Eve" is protected by the common law right of publicity but not by §§ 50, 51).
Second, the privacy right secured by §§ 50, 51 is a nonassignable personal right. See, e.g., Lombardo, 396 N.Y.S.2d at 664; Rosemont Enters., Inc. v. Random House, Inc., 294 N.Y.S.2d 122, 129 (Sup. Ct. 1968), aff'd, 301 N.Y.S.2d 948 (App. Div. 1969). In this sense, it is unlike the common law right of publicity. See Haelan Lab., Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866, 868 (2d Cir.), cert. denied, 346 U.S. 816 (1953). Third, although a cryptic footnote in Stephano appeared to leave the question open, 474 N.E.2d at 584 n.2, courts have since held that the statutory right created by §§ 50, 51 is not inheritable. See Pirone v. MacMillan, Inc., 894 F.2d 579, 585 (2d Cir. 1990); Smith v. Long Island Jewish-Hillside Medical Ctr., 499 N.Y.S.2d 167, 168 (App. Div. 1986); James v. Delilah Films, Inc., 544 N.Y.S.2d 447, 451 (Sup. Ct. 1989).
The bill mentioned above is primarily designed to undo the impact of the Stephano decision on New York law. Accordingly, the bill defines the right of publicity as "a property right that every natural person, living or deceased, has in his identity," and provides that the right is "descendible and . . . freely transferable." S. 5053-A, A. 8050-A, supra, sec. 1, § 58.1 (emphasis added). The bill would create a civil action, for damages and injunctive relief, for unauthorized advertising or trade use of "name, voice, signature, photograph, or visual image." Id. sec. 1, § 58.2.
n77 See Daniel B. Moskowitz, Celebrities' Ghosts Are Hanging over Advertisers, BUS. WK., June 3, 1985, at 108. A copy of the card is on file with the author.
n78 Wayne Enterprises, a family-owned partnership which purchased from John Wayne the exclusive right to use his identity, donates net profits from its licensing agreements to the John Wayne Cancer Clinic at UCLA. Statement of Michael Wayne Before the N.Y. State Senate in Support of the Celebrity Rights Act 3 (May 15, 1989) (transcript on file with author).
n79 See id.; see also Moskowitz, supra note 77 (quoting Wayne's son as complaining that the card "denigrates his image"). Another "abuse" cited" at the New York legislative hearing was a greeting card that pictured Clark Gable standing before the main staircase at Tara holding a scantily clad young man in his arms. The caption on the card was, "Frankly, my dear, I do give a damn." Gable's son, John, testified that he and his family were greatly distressed and offended by the card, and asked the Legislature to "help me preserve the image of my father." See 1988 Hearing, supra note 31, at 34 (statement of John Clark Gable).
n80 For the meaning of this term, see supra note 50.
n81 See supra text accompanying note 6.
n82 Advertisement, LIFE, July 1989, at 95.
n84 FISKE, TELEVISION CULTURE, supra note 49 at 236, 239.
n85 Many of the witnesses who testified in favor of the New York publicity rights bill were candid about their intention to supress appropriations whose substantive content they find tasteless or offensive. The sons of John Wayne and Clark Gable, for example, would certainly deny licenses to the sellers of the greeting cards described above. See supra note 79 and accompanying text. Their objection to these cards was not that they were being sold without payment to the Wayne and Gable estates, but that they were being sold at all. Interestingly, a great many of the "abuses" (in other words, unauthorized appropriations) cited at the hearings were articles directed at a gay market. See, e.g., 1988 Hearing, supra note 31, at 19-21 (Roger Richman complaining, inter alia, about male impersonators of Marilyn Monroe and about Oscar Wilde Beer -- "bottled beer with an extra-long neck on it"). Roger Richman, who heads the exclusive licensing and eforcement agency for numerous living and deceased celebrities, urged adoption of a publicity rights law to curb this "denigration of our national treasures." Id. at 16. One person's "denigration," of course, is just another's recoding.
The property management agent of the Martin Luther King, Jr., Center for Social Change estimates that half the requests that are made each year for use of Dr. King's image are denied. Telephone Interview with Isaac Farris, Property Management Agent, Martin Luther King, Jr., Center for Social Change (Sept. 18, 1990). Mr. Farris stated that licensing decisions are made on a "case-by-case basis," and that products are evaluated on three criteria: their quality, their integrity and character, and their degree of likeness to Dr. King. Id. He declined to estimate how many of the denials rest on considerations of taste, value, viewpoint, and the like. He did state, however, that three recent proposals (a floor mat for a car, a perfume, and a pocketknife) had been rejected under the "integrity and character" criterion. Id.
n86 See GAINES, supra note 28, at 239.
n87 David Lange noted some time ago that the First Amendment is too "broad-gauged" a tool for this purpose, see Lange, supra note 26, at 165 n.74, and subsequent developments have certainly proved him right. The courts have reserved First Amendment protection for image-appropriating forms that are veiwed as having primarily cultural or informational purposes (plays, songs, books, news, movies). Attempts to defend the sale of celebrity merchandise (posters, T-shirts, greeting cards, games, etc.) on First Amendment grounds have been uniformly rejected. Compare Rosemont Enters. v. Random House, Inc., 294 N.Y.S.2d 122, 128 (Sup. Ct. 1968) (First Amendment protection accorded to a Howard Hughes biography), aff'd, 301 N.Y.S.2d 948 (App. Div. 1969) with Rosemount Enters, v. Urban Sys., Inc., 340 N.Y.S.2d 144, 146-47 (Sup. Ct.) (First Amendment defense rejected for a Howard Hughes board game), modified on other grounds, 345 N.Y.S.2d 17 (App. Div. 1973) and Rosemount Enters. v. Choppy Prods., 347 N.Y.S.2d 83, 85 (Sup. Ct. 1972) (First Amendment defense rejected for a Howard Hughes T-shirt bearing a satirical comment). Courts generally do not discern any constitutionally protectible "speech" in these articles, despite their communicative and culture-building functions. The common judicial reaction is to dismiss posters, games, greeting cards, and the like as "mere merchandise." Chief Justice Bird's statement in the Lugosi case is typical:
Lugosi v. Universal Pictures, 603 P.2d 425, 449 (Cal. 1979) (Bird, C.J., dissenting); see also Winterland Concessions Co. v. Sileo, 528 F. Supp. 1201, 1214 (N.D. Ill. 1981) (distinguishing T-shirts from newspapers), aff'd, 830 F.2d 195 (7th Cir. 1987); Factors Etc., Inc. v. Creative Card Co., 444 F. Supp. 279, 285 (S.D.N.Y. 1977) (no First Amendment protection for the sale of "posters of Elvis Presley as Elvis Presley"); Sims, supra note 27, at 493 ("Courts have peremptorily rejected the idea that posters, games, or other celebrity memorabilia convey speech of constitutional significance. . . .").