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.
Notes from the Talk
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 did privacy’s work right from the very beginning. The central difference between the two concepts is the fact that the right of privacy was transferable, which benefitted corporations and third parties, whereas the right of publicity originally was not.
However, the right of publicity “lost its way” when its focus shifted 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 is that like the right of privacy, the right of publicity has become transferable. As she 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 has observed 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
Jennifer E. Rothman is Professor of Law and the Joseph Scott Fellow at Loyola Law School, Los Angeles. She joined the Loyola faculty from Washington University in St. Louis, where she was an Associate Professor of Law. Professor Rothman currently teaches Trademarks and Unfair Competition, Torts, Intellectual Property Theory and the Right of Publicity. She is an elected member of the American Law Institute and an affiliated fellow at the Yale Information Society Project at Yale Law School.
Professor Rothman is nationally recognized for her scholarship in the intellectual property field, and has become the leading expert on the right of publicity. She researches and writes primarily in the areas of intellectual property and constitutional law. In addition to focusing on conflicts between IP rights and other constitutionally protected rights, such as the freedom of speech, her work also explores the intersections of tort and property law, particularly in the context of the right of publicity and trademark and unfair competition law. Her forthcoming book, The Right of Publicity: Privacy Reimagined for a Public World, will be published by Harvard University Press. Professor Rothman created Rothman’s Roadmap to the Right of Publicity, www.rightofpublicityroadmap.com, the go-to-website for right-of-publicity questions and news.
Rothman’s essays and articles regularly appear in top law reviews and journals, including Cornell Law Review, Georgetown Law Journal, Virginia Law Review, Harvard Journal of Law & Public Policy and the Stanford Law & Policy Review. She is regularly invited to speak at a variety of esteemed institutions, including Columbia, Michigan, Stanford, University of Chicago, University of Pennsylvania, U.C. Berkeley, UCLA and Yale.
Rothman received her A.B. from Princeton University where she received the Asher Hinds Book Prize and the Grace May Tilton Prize. Rothman received an M.F.A. in film production from the University of Southern California’s School of Cinematic Arts, where she directed an award-winning documentary. Rothman then worked in the film industry for a number of years, including positions at Paramount Pictures and Castle Rock Entertainment.
Rothman received her J.D. from UCLA, where she graduated first in her class and won the Jerry Pacht Memorial Constitutional Law Award for her scholarship in that field. Rothman served as law clerk to the Honorable Marsha S. Berzon of the United States Court of Appeals for the Ninth Circuit in San Francisco and then practiced as an entertainment and intellectual property litigator in Los Angeles at Irell & Manella.