From Donald Trump to Lindsay Lohan to Manuel Noriega, real people who are portrayed in expressive works are increasingly targeting creators of those works for allegedly violating their “right of publicity”—a state-law tort that prohibits the unauthorized use of a person’s name, likeness, and other identifying characteristics. Intuitively, we might feel confident that Mark Zuckerberg should not be able to block his portrayal in The Social Network movie, that Marilyn Monroe could not have stopped Andy Warhol from exhibiting his vibrant paintings, that O.J. Simpson could not have demanded money from FX to air the American Crime Story docudrama. But what supports these intuitions? And should we be so confident?
This Article provides a new framework to reconcile publicity rights with a robust commitment to free speech under the First Amendment. After describing the current landscape in the courts, this Article scrutinizes the “educative” First Amendment theory that has motivated many of the past decisions confronting the right of publicity—a listener-focused theory that relies on the public’s right to receive information. This Article then reframes the doctrine in a new way: as four distinct educative defenses that have developed to assuage concerns about publicity rights interfering with speech on matters of public concern. These four defenses might seem encouraging to those who worry that publicity rights impair expressive rights. But all too often they have instead complicated and undermined the opposition to publicity rights and, as a result, they pose an unexpected and underestimated threat to free speech. To combat this threat, this Article recalibrates First Amendment theory as it relates to the right of publicity.
To adequately protect creators and their expressive works, this Article argues that we must abandon educative models of the First Amendment and instead adopt an approach that also protects the speaker as a central part of enabling public discourse. Failure to adopt this speaker-focused theory in publicity doctrine will perpetuate confusion in the courts and state legislatures, an outcome that will have a chilling effect on creators who seek to portray real people in their work. Yet we must also recognize the interests that publicity rights can serve. As we move into an era of new technology and innovation—from “deep fakes” to nonconsensual pornography—this challenge will only intensify. To address it, courts should refer to the constitutional concept of “public discourse” when publicity rights face off against expressive rights—a concept that not only empowers free expression, but also considers the narrow interests that we should all have in preventing certain uses of our images.
78 Md. L. Rev. 899 (2019)