Does Bogart Still Get Scale? Rights of Publicity in the Digital Age

Abstract

Perhaps within the next decade, the technology of reanimation will allow film producers to cast any actor, living or dead, in any role. In this respect, there will soon be no difference between Humphrey Bogart and Mickey Mouse. Soon a sequel to the Maltese Falcon can star Bogart as he was in 1940. The legal rules that will operate in this environment are still being shaped. The discussion to date has centered on the need to ensure that intellectual property rights are shaped in such a way that preserves a large public domain. Such rights should not limit the ability of new artists and producers to create new work. This paper suggests that the existing debate misses the mark. Legal rules ought to take account of the way in which our cultural icons are both finite and privately owned. They need to be shepherded. Rights of publicity and other intellectual property rights are like any other scarce resource. We count on those who own them to manage them well. As with every property regime, what matters most is for rights to be defined clearly and their transfer easy.