Hastings Communications and Entertainment Law Journal


Sean D. Whaley


The federal government has failed to codify a federal publicity right. This has caused numerous problems recently, as varying state laws unevenly restrain the commercial speech of many actors in interstate commerce. However, the nature of the publicity right as a property right and its essential function in interstate commerce calls for Congress to adopt a federal publicity right. Similar to the dual system of trademark protection, a federal publicity right will not preempt such rights at the state level. Rather, establishing such a right will detail proper justification and contours of the right. By establishing a federal right, the federal government has the ability to balance the Constitutional rights of parties and encourage states to adopt similar legislation. This will help both courts and parties understand the scope and nature of publicity rights in the future.

This paper details the necessity of a federal publicity right and details some of the essential features of a federal publicity right. By looking at the justifications for the right, the first section shows why this is an ample time for a modem federal publicity right. The next section outlines the major characteristics for the right and why they are the proper restraints. Finally, the last section balances the right of publicity against other Constitutional freedoms to properly balance the different rights of individuals.