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Full-Text Articles in Law
Navigating The Identity Thicket: Trademark's Lost Theory Of Personality, The Right Of Publicity, And Preemption, Jennifer E. Rothman
Navigating The Identity Thicket: Trademark's Lost Theory Of Personality, The Right Of Publicity, And Preemption, Jennifer E. Rothman
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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 …
The Inalienable Right Of Publicity, Jennifer E. Rothman
The Inalienable Right Of Publicity, Jennifer E. Rothman
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This article challenges the conventional wisdom that the right of publicity is universally and uncontroversially alienable. Courts and scholars have routinely described the right as a freely transferable property right, akin to patents or copyrights. Despite such broad claims of unfettered alienability, courts have limited the transferability of publicity rights in a variety of instances. No one has developed a robust account of why such limits should exist or what their contours should be. This article remedies this omission and concludes that the right of publicity must have significantly limited alienability to protect the rights of individuals to control the …
Liberating Copyright: Thinking Beyond Free Speech, Jennifer E. Rothman
Liberating Copyright: Thinking Beyond Free Speech, Jennifer E. Rothman
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Scholars have often turned to the First Amendment to limit the scope of ever-expanding copyright law. This approach has mostly failed to convince courts that independent review is merited and has offered little to individuals engaged in personal rather than political or cultural expression. In this Article, I consider the value of an alternative paradigm using the lens of substantive due process and liberty to evaluate users’ rights. A liberty-based approach uses this other developed body of constitutional law to demarcate justifiable personal, identity-based uses of copyrighted works. Uses that are essential for mental integrity, intimacy promotion, communication, or religious …
Political Representation And Accountability Under Don't Ask, Don't Tell, Tobias Barrington Wolff
Political Representation And Accountability Under Don't Ask, Don't Tell, Tobias Barrington Wolff
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The U.S. military's Don't Ask, Don't Tell policy constitutes a singular type of speech regulation: an explicit prohibition on identity speech by a defined population of individuals that mandates a state of complete social invisibility in both military and civilian life. The impact of such a regulation upon the public speech values protected by the First Amendment should not be difficult to apprehend. And yet, as the tenth anniversary of the policy approaches, First Amendment scholars have largely ignored this seemingly irresistible subject of study, and the federal courts have refused to engage with the policy's implications for public speech …