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Owning Oneself In A World Of Others: Towards A Paid-For First Amendment, David Franklyn, Adam Kuhn

Publications

The first Part of this Article charts a brief course through the history of the right of publicity and the First Amendment. The second Part studies the competing economic rights, their philosophical justifications, and their shortcomings. The third Part analyzes several major cases that dealt with the conflict of rights, criticizing the transformative use analysis as a proxy for economic value and explaining the shortfalls of the test. The fourth Part proposes a new theory of add-on value and a paid-for First Amendment.

The issue we identify is that a loosely defined doctrine of concurrent ownership (of the celebrity image) …