Owning Oneself in a World of Others: Towards a Paid-For First Amendment

Abstract

Can the right of publicity (a state law right) be reconciled (in a legitimate and non-arbitrary way) with the First Amendment's prohibition against state laws that “suppress” speech? Ever since the Supreme Court said that commercial speech deserves First Amendment protection, people sued for misappropriating celebrity fame for profit have claimed that they have a First Amendment right to do so. The defense has morphed in the case law to the point that the controlling issue seems to be whether the challenged use is “sufficiently transformative” to justify the taking. The use of a transformation construct to manage the conflict has been dubious at best, and misleading at worst. It has spawned an inconsistent and increasingly arbitrary body of law. This Article argues that the courts' conceptualization of the conflict — as a property right against a speech right — is askew. We argue that the conflict is about allocating competing economic claims: the right of the plaintiff to prevent commercial use of her image versus the right of the defendant to make commercial use of her image. The use of the transformation test essentially turns the inquiry into an attempt, albeit not transparent, to allocate the economic value created or attributable to the celebrity plaintiff against the add-on value created by the person who took the celebrity image and allegedly transformed it into a new product with new economic value attributable to work or creativity of the unauthorized user. This article concludes that in order to save both of these important rights, we must allow judges to honestly deal with the underlying economic issues. We can only accomplish this by transitioning to a compulsory licensing system with forced apportionment. In order to satisfy the First Amendment, censorship must be taken off the table as a plaintiff tool. But to satisfy the right of publicity, mandatory profit sharing mechanisms must be implemented.