Hastings Communications and Entertainment Law Journal


The right of publicity is a relatively marginalized yet increasingly radical form of intellectual property. Typically, celebrities use it to prevent freeloaders from profiting on their fame by making unauthorized use of their image, likeness or signature to make goods or services more attractive to consumers. The right of publicity allows famous individuals to stop this type of behavior by providing a property right in identity or persona. Brandished by celebrities who are also political figures, though, the doctrine can become a powerful means of chilling political speech, and therefore a direct threat to First Amendment free speech rights. The descriptive goal of this article is to explain how publicity rights can cause problems in the context of political figures that also have celebrity status. This article extends the existing literature on the tension between publicity rights and free speech rights, and uses the spectacle of Barack Obama's initial presidential bid to theorize how a publicity right suit can be used to undermine the political speech of an individual whose public persona is similar to that of a celebrity. This is a new form of strategic intellectual property litigation that could have crippled the first Obama campaign, and a strategy that is likely to be used against future candidates. The normative section of this article argues that individuals who gain a nontrivial measure of pop cultural fame and then go on to become political figures should have no publicity rights, and that denying such figures the power to stop unauthorized commercial use of their likenesses is the only way to avoid societally detrimental chilling of political speech.