Hastings Communications and Entertainment Law Journal


The scope and definition of the right of publicity is currently in a state of confusion, and courts continue to interpret the right in a variety of ways. This note asserts that given too broad an interpretation, the right of publicity may impair first amendment freedoms. The author discusses the early cases developing the right of publicity and then examines the recent expansion of this right by the court in Carson v. Here's Johnny Portable Toilets, Inc. Distinguishing Carson from the earlier cases, the author argues that this broad expansion of the right of publicity is both unwarranted and undesirable. Advocating the need for a method of analysis, the author suggests that the right of publicity be analyzed under principles similar to those established in copyright law in order to foster consistent application of the law and to ensure protection of first amendment freedoms.