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Hastings Law Journal

Abstract

Starting shortly after the emergence of the right of publicity in 1953 and continuing into the mid-1980s, scholarly commentary sought to further define and develop the right. Since then, and particularly in the Ninth Circuit, courts have had many opportunities to interpret the right, and they have redefined it around the concept of "associative value."

Professor Halpern examines the right of publicity as a fully formed, mature construct that now has been largely assimilated into the mainstream of American legal thought. Professor Halpern criticizes recent commentators who, arguing from the standpoint of a more general Critical Legal Studies attack on intellectual property, have. come to question whether the right of publicity should exist at all. He notes that these commentators' criticisms of the right of publicity rest on a distaste for the fact that celebrity has value, rather than on an argument that celebrity status lacks value. Professor Halpern concludes that the right of publicity has an established place and a clear future in American jurisprudence.

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