Hastings Communications and Entertainment Law Journal


Justin L. Rand


The only consistency in right of publicity jurisprudence has been inconsistency. The right can be defined as the ability to control the commercial use of one's identity, and its scope has varied from state to state and era to era. While aspects of the right of publicity partially overlap with copyright and trademark, its historical origins and underlying policy justifications are distinct. Indeed, understanding the unique position of the right has become increasingly important in the digital revolution, where celebrities are vigorously fighting to protect their identities from outside, commercial exploitation. Yet, in their efforts to monetize their names, images, and likenesses, celebrities are often implicating another protected right: freedom of expression under the First Amendment. This comment analyzes the tests courts currently employ to balance these competing rights, arguing that all of them fall short. In their place, this comment proposes a new, multifactor test that incorporates economic analysis and established fair use factors. From popular music to video games, the right of publicity is increasingly at the forefront of intellectual property litigation. This comment seeks to provide a more predictable and cogent analytical framework.