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Tuesday, April 27, 2004

Article on Twist and the Right of Publicity: A while back, I noted that the Supreme Court chose not to review a right of publicity case involving former NHL player Tony Twist and a comic book character based on him. A friend of mine at this esteemed institution has written a case commentary on the issue, which I recommend to everyone. The cite is 117 Harv. L. Rev. 1275 and it is available for those with Lexis or WestLaw. It begins:

    The extent to which the First Amendment protects a defendant in a right of publicity case is an issue that has vexed courts and commentators: whereas some authorities have adopted tests that tend to favor speechmakers, the Missouri Supreme Court in Doe v. TCI Cablevision recently created a test that tends to protect celebrities. The Missouri test is vague and unworkable, however, and the court should have held that publicity rights are subject to the "actual malice" standard of traditional First Amendment scrutiny.

While I agree with the author that the test is difficult to administer, I am not certain that the "actual malice" standard is where the line should be drawn. A celebrity's image is a valuable property right that should be protected, even against 1st Amendment expression. While the California standard draws the line at whether or not anything was added to the copy of the figure's image, a more intricate test should be used to determine the value to the creator of using the image of the public figure. Creators should be allowed to use public figures in creative works, but they should have to compensate the figure for a portion of the benefit gained from using the famous likeness. Through this rule, the right to free expression can be protected, as can a celebrity's right to be compensated for the use of his or her image.

I recommend the entire article.


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