The Yale Law Journal

VOLUME
130
2020
NUMBER
1
October 2020
1-275

The First Amendment and the Right(s) of Publicity

Constitutional LawTorts

abstract. 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 advanced by the right of publicity. We seek to remedy this deficiency by disaggregating four distinct state interests that the right of publicity is typically invoked to protect. We argue that in any given case the right of publicity is characteristically invoked to protect (one or more) of these four interests: the value of a plaintiff’s performance, the commercial value of a plaintiff’s identity, the dignity of a plaintiff, or the autonomous personality of a plaintiff.

Plaintiffs’ interests in their identity must always be weighed against defendants’ constitutional interests in their speech. We therefore isolate three constitutional kinds of communication, each with a distinct form of First Amendment protection. A defendant’s misappropriation of a plaintiff’s identity can occur in public discourse, in commercial speech, or in what we call “commodities.” We then discuss how constitutional protections for these three kinds of speech should intersect with the four different interests that right of publicity claims are typically invoked to protect.

The upshot is not a mechanical algorithm for producing correct constitutional outcomes, but an illumination of the constitutional stakes at issue in any given right of publicity action. We hope that by carefully surfacing the constitutional and policy stakes that beset the conflict between right(s) of publicity and the First Amendment, we have sketched a map that might substantially assist those who must navigate this tumultuous terrain.

author. Robert C. Post is the Sterling Professor of Law at Yale Law School. Jennifer E. Rothman is the William G. Coskran Professor of Law at Loyola Law School, Loyola Marymount University, Los Angeles. For their comments on drafts of this paper, we are grateful to Shyamkrishna Balganesh, Jane Ginsburg, Wendy Gordon, Amy Kapczynski, Genevieve Lakier, Mark Lemley, J. Thomas McCarthy, Elizabeth Pollman, Lisa Ramsey, Pamela Samuelson, Frederick Schauer, Brian Soucek, Rebecca Tushnet, Eugene Volokh, James Weinstein, Christopher Yoo, and participants at the Boston University Intellectual Property Colloquium, the University of Pennsylvania’s Law & Technology Colloquium, the Pepperdine Caruso School of Law faculty workshop, the Yale Freedom of Expression Scholars Conference, the Intellectual Property Scholars Conference at DePaul University, and the Works-in-Progress Intellectual Property Conference at Santa Clara University. We also thank Alejandro Nava Cuenca, Gavin Holland, and Alex Zhang for their research assistance.

Introduction

The right of publicity is broadly defined as a state-law tort designed to prevent unauthorized uses of a person’s identity that typically involve appropriations of a person’s name, likeness, or voice.1 Because the right of publicity restricts what can be said, shown, or heard, it potentially conflicts with freedom of speech. Judicial analysis of this conflict is notoriously incoherent and inconsistent.

The essence of the problem is that unauthorized uses of identity are regulated for many different reasons that are frequently jumbled together in vague state proscriptions enforced either through common-law torts or legislation. Cogent First Amendment analysis requires careful specification of the precise state interests that justify government restrictions of speech. It should come as no surprise then that courts have failed to articulate any single First Amendment test adequate to encompass the many distinct legal interests that the contemporary right of publicity jams together.

In most of its formulations, the right of publicity refers to a distinct tortious act, which is broadly defined as the appropriation of a plaintiff’s identity for a defendant’s “use or benefit.”2 But a single tortious act can impair multiple distinct legal interests. Consider an example drawn from Hustler Magazine, Inc. v. Falwell: if I accuse you of having sex with your mother, I can damage the esteem in which you are held in your community, and so commit the tort of defamation. Or I can specifically intend to cause you emotional harm, and so commit the tort of intentional infliction of emotional distress. Or I can assault your dignity by revealing deeply held secrets, and so commit the tort of public disclosure of private facts.3 Although these different torts arise out of the same act, they each possess different elements that track the specific harm the tort is designed to redress.

The underlying difficulty with the right of publicity is that it prohibits conduct without specifying the particular harm the tort seeks to address.4 The resulting imprecision has encouraged the tort to expand uncontrollably, becoming, in the words of one commentator, like the “Wild West.”5 Not only has litigation involving the right of publicity greatly increased,6 but disparities in defining the right across different jurisdictions have also grown.7 In some states, the right is confined to commercial contexts, and in others it is not.8 In some states, plaintiffs asserting the right must establish that they have commercially valuable identities, and in others they do not.9 In some states, the right is oriented toward economic injury, and in others it encompasses injuries that are both economic and personal.10 Because the harms redressed by the tort are uncertain and ill-defined, so too is First Amendment treatment of the tort.

This has real and important consequences. Those who wish to create expressive works that incorporate the identities of actual people, or who wish to post images and comments about actual people online, are bereft of reliable and foreseeable protections for the exercise of essential First Amendment rights. Courts have disagreed about the circumstances under which the First Amendment protects the use of well-known persons’ identities in video games,11 news reporting,12 posters,13 board and card games,14 prints,15 comic books,16 merchandise,17 and movies.18 The tort’s jagged and unpredictable reach chills speech in extensive and immeasurable ways.

Our hope is to ameliorate these deficiencies in right of publicity law much as William Prosser did sixty years ago for the right of privacy. He looked at the “haystack in a hurricane” of privacy law and sought to make sense of it by distinguishing four distinct kinds of privacy torts.19 In this Article, we seek to perform an analogous service for the right of publicity and, in the process, to clarify constitutional analysis of the tort.

We identify four distinct interests that the right of publicity typically seeks to vindicate. The disaggregation of these interests is an essential first step in addressing the current confusion because each of these four interests requires its own specific First Amendment analysis. As a helpful heuristic, one might even go so far as to imagine each of these interests as embodied in its own distinct tort, with its own set of prima facie elements.

For purposes of clarity, we denominate these four ideal torts as the right of performance, the right of commercial value, the right of control, and the right of dignity. These torts protect, respectively, plaintiffs’ interests in controlling the use of their performances, in preserving the commercial value of their identity, in protecting the autonomy of their personality, and in maintaining the dignity of their person. In any given right of publicity action, one or more of these four distinct interests may be at stake.20 When taken together, we believe that these four interests encompass the vast majority of cases presently brought to remedy unauthorized uses of identity under state right of publicity laws.

In Part I, we define these four different rights of publicity. In Part II, we describe the present sorry state of First Amendment analysis with respect to right of publicity claims. In Part III, we demonstrate that the clarity of First Amendment analysis will be much improved if publicity claims are disaggregated into the four interests that we identify. Though difficult constitutional judgments will of course remain, our hope is that our proposed framework will produce more reliable, predictable, and sound constitutional outcomes than the bedlam that presently prevails. We hope also to offer a useful vantage for further critique and reform of the underlying substantive tort.