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The First Amendment And The Right(S) Of Publicity, Jennifer E. Rothman, Robert C. Post
The First Amendment And The Right(S) Of Publicity, Jennifer E. Rothman, Robert C. Post
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The right of publicity protects persons against unauthorized uses of their identity, most typically their names, images, or voices. The right is in obvious tension with freedom of speech. Yet courts seeking to reconcile the right with the First Amendment have to date produced only a notoriously confused muddle of inconsistent constitutional doctrine. In this Article, we suggest a way out of the maze. We propose a relatively straightforward framework for analyzing how the right of publicity should be squared with First Amendment principles.
At the root of contemporary constitutional confusion lies a failure to articulate the precise state interests …
The Right Of Publicity's Intellectual Property Turn, Jennifer E. Rothman
The Right Of Publicity's Intellectual Property Turn, Jennifer E. Rothman
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The Article is adapted from a keynote lecture about my book, THE RIGHT OF PUBLICITY: PRIVACY REIMAGINED FOR A PUBLIC WORLD (Harvard Univ. Press 2018), delivered at Columbia Law School for its symposium, “Owning Personality: The Expanding Right of Publicity.” The book challenges the conventional historical and theoretical understanding of the right of publicity. By uncovering the history of the right of publicity’s development, the book reveals solutions to current clashes with free speech, individual liberty, and copyright law, as well as some opportunities for better protecting privacy in the digital age.
The lecture (as adapted for this Article) explores …
Commercial Speech, Commercial Use, And The Intellectual Property Quagmire, Jennifer E. Rothman
Commercial Speech, Commercial Use, And The Intellectual Property Quagmire, Jennifer E. Rothman
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The commercial speech doctrine in First Amendment jurisprudence has frequently been criticized and is recognized as a highly contested, problematic and shifting landscape. Despite the compelling critique within constitutional law scholarship more broadly, Intellectual Property (“IP”) law has not only embraced the differential treatment of commercial speech, but has done so in ways that disfavor a much broader swath of speech than traditional commercial speech doctrine allows. One of the challenges for courts, litigants, and scholars alike is that the term “commercial” is used to mean multiple things, even within the same body of IP law. In this Article, I …