Constitutional Restraints on State Right of Publicity Laws

Abstract

Over the past fifty years, a new intellectual property right called the right of publicity has evolved under state common law. The author explores a recurring concern hinted at by several lower courts and dissenting opinions: that current publicity laws offend parts of the Constitution beyond the First Amendment and the Copyright Clause. The existing hodgepodge of state statutory and common law that makes up the right of publicity appears to be a minefield of constitutional hazards. Courts must consider a variety of First Amendment, Copyright Clause, Commerce Clause, Due Process Clause, and Full Faith and Credit Clause issues when resolving publicity rights cases. The author argues that Congress could simplify this area of the law considerably for plaintiffs, defendants, and courts by creating a limited preemptive federal right of publicity. Alternatively, the right could remain state-based and still avoid these issues through other approaches.