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October 2008

MLRC Bulletin 2008 Issue 4

PUBLICATION:
in this issue

New Developments

INTRODUCTION This past year saw a number of interesting legislative and doctrinal developments in media libel and privacy laws.  On the legislative front, New York State responded to the problem of international libel tourism by enacting the provocatively titled “Libel Terrorism Protection Act.” The law was a response to the Rachel Ehrenfeld case, the American…

Fair Use and the Right of Publicity: A Search for a More Balanced Approach

By Kent R. Raygor and Valerie E. Alter* I. INTRODUCTION When is it fair to use some part of a celebrity’s persona in connection with a product, service, report, or other communication to the public?  This is a question with which courts continue to struggle in trying to balance the public’s right of free expression…

“Publicity” Misappropriation Damages: Making Sense of the “Hodgepodge”

By Joel M. Smith* Fifty-five years ago, in a dispute between two chewing gum manufacturers over which of them had contracted the right to use the photograph of a baseball player to peddle its chewing gum, Judge Jerome Frank, speaking for the U.S. Court of  Appeals for the Second Circuit, observed that “a man has…

Section 230 Immunity and State Right of Publicity Claims

By Bruce E.H. Johnson and Kevin L. Vick* In recent decades, the right of publicity has played an increasingly significant role in media and entertainment litigation.  And in the past few years, the proper classification of the right of publicity has come to the forefront.  Is it a privacy right?  An intellectual property right?  A…

Non-Human Persons and the Right of Publicity

By Stacy Allen, Emilio B. Nicolas and Megan Honey* Originally viewed as an extension of the right of privacy, the right of publicity has developed into a free-standing property interest in the commercial value of one’s identity (or “persona”).[1]  Courts and legislatures have been overwhelmingly unwilling to extend the right of publicity beyond human individuals…

Reanimating the Postmortem Right of Publicity

By A. J. Thomas* There has never been a better time, it would seem, to be a dead celebrity.  Three states either have recently enacted or are considering legislation to expand postmortem rights of publicity, conferring on long-dead celebrities rights to sue over the use of their images that never existed during their lifetimes.[1] In…

Between Cher and Joe Montana – When Is It Okay to Use A Person’s Image to Advertise a Protected Use of That Image

By Benjamin R. Mulcahy* In deciding whether the unauthorized use of a third party’s name, voice, likeness or persona (collectively, “Image”) violates such third party’s publicity rights, the first level of inquiry is whether the use is properly categorized as a “commercial” or a “noncommercial” use.  If an Image is used without permission in a…

Balancing the Right of Publicity and the First Amendment

By Timothy L. Alger and Justin Brownstone* Introduction A majority of jurisdictions recognize a right of publicity, either by statute, common law or both.[1]  A descendant of the right of privacy, the right of publicity protects an individual’s economic interest in the use of his or her identity and can come into conflict with freedom…

Avoiding the First Amendment in Right of Publicity Cases: The Usual Suspects

By Lincoln D. Bandlow* I.          Introduction The names, likenesses and identities of celebrities and other icons that inhabit the world of popular culture are an important part of our communicative milieu and common vernacular.  Thus, speakers often use a celebrity’s identity to convey a message.  Use of a person’s identity without authorization, however, may trigger…

Introduction

It has been a few years since the MLRC last gave the right of publicity an in-depth look.  Since then, one might have expected that the courts would have gotten their arms around this area of law.  But, instead, right of publicity is going through its version of the cosmic Big Bang, with an ever-expanding…

MLRC Bulletin 2008 Issue 4 – Right of Publicity & Report on Significant Developments

 Download Publication PART I RIGHT OF PUBLICITY INTRODUCTION AVOIDING THE FIRST AMENDMENT IN RIGHT OF PUBLICITY CASES : THE USUAL SUSPECTSBy Lincoln D. Bandlow BALANCING THE RIGHT OF PUBLICITY AND THE FIRST AMENDMENTBy Timothy L. Alger and Justin Brownstone BETWEEN CHER AND JOE MONTANA – WHEN IS IT OKAY TO USE A PERSON’S IMAGE TO…