Possessing Star Qualities: Celebrity Identity as Property

Abstract

This article discusses the legal protection of celebrity identity in Australia and the US in the context of post-modern critiques of intellectual property and cultural production. In the US, the Californian legislation, through its resemblance to schemes for copyright protection, clearly characterises the celebrity image as an 'artistic work'. Courts in Australia have avoided an explicit property characterisation but allow celebrities an action in passing off, a tort traditionally associated with trade mark law. The article questions the implications of an intellectual property paradigm for the protection of celebrity rights, and is particularly critical of the role of law in the creation of property value. Copyright law is founded on liberal notions of personal authorship and free speech which are problematic in an era of mass production and communications, but trade marks further channel the ownership of cultural images into the hands of corporations and away from the public. The article concludes that the Australian approach may give some flexibility however: in focusing on the effect of the use of celebrity images in the mind of the public, the potential exists to acknowledge the place of these images in popular culture and the public domain.