The Right of Publicity: Privacy Reimagined for a Public World
featuring author, Jennifer E. Rothman, Professor of Law and Joseph Scott Fellow, Loyola Law School
Tuesday, April 3, 2018 at 12:00 pm
Berkman Center for Internet & Society at Harvard University
In today’s world where little remains private, Jennifer E. Rothman, Professor of Law and Joseph Scott Fellow at Loyola Law School, sees the right of publicity as something that could provide relief where today’s version of the right of privacy has failed to do so. The right of publicity, which typically protects the defendant, stops others from using a person’s name, likeness, or certain additional aspects of their identity.
A myth exists that the right of publicity began in “opposition” to the right of privacy. Based on archival research, Rothman has found that this is not true. Rather, Rothman claims, publicity has done privacy’s work right from the very beginning. The central difference between the two was the fact that the right of privacy was transferable, which benefits corporations and third parties, whereas the right of publicity originally was not.
However, as the right of publicity “lost its way” it shifted its focus from the individual and towards an intellectual property frame. Thus, Rothman recognizes three dangers to the right of publicity, describing it in its current state as a “bloated monster.”
The first danger to the right of publicity is that it has become transferable. As Rothman explains, “we’ve created a bizarre world in which our names and likenesses can be owned by someone other than ourselves.” The second danger is that it may shut down free speech; Rothman observes an increasing conflict between the first amendment and right of publicity. The third danger is that the right of publicity represents a collision with federal copyright law. The latter two dangers have concerning implications when thinking about creative artistic expression and news reporting.
Overall, Rothman is optimistic about the right of publicity, explaining that “in the years ahead, if we can solve these three major problems, the right of publicity should be a tool to protect both public and private figures.”
notes by Donica O'Malley
Who controls how one's identity is used by others? This legal question, centuries old, demands greater scrutiny in the Internet Age. Jennifer Rothman uses the right of publicity - a little-known law, often wielded by celebrities - to answer that question not just for the famous, but for everyone. Rothman challenges the conventional story of the right of publicity's development, and questions its transformation of people into intellectual property. This shift and the right's subsequent expansion undermine individual liberty, restrict free speech, and suppress artistic works.
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