Rapidly developing technological opportunities for unauthorized uses of identity-from "virtual kidnapping" to digitalcasting-coincide with growing demand for a preemptive federal right of publicity that can replace the existing welter of inconsistent state laws. Progress is impeded, however, by intractable doctrinal confusion and academic hostility to the right as allegedly inimical to society's cultural need to manipulate celebrity images. Because the right of publicity is traditionally based on Lockean labor theory and analogized to intellectual property in created works, it is vulnerable to such attacks; to date, no serious attempt has been made to elaborate an alternative philosophical justification that can withstand them. In this Article, Dean Haemmerli uses Kantian philosophy to justify an autonomy-based right of publicity. In doing so, she challenges both the traditional approach to the right of publicity and its postmodernist critiques. First, the Article's proposed reconception of the right of publicity rejects the existing doctrinal bifurcation of publicity and privacy rights and explicitly embraces both the economic and moral facets of the individual's need to control the use of his identity. Second, by grounding the right in personal autonomy rather than purely pecuniary interests, the Article gives it greater weight in the balance against competing First Amendment considerations. At the same time, in order to contain potential abuses of a more expansive right, the Article considers First Amendment, fair use, and first sale doctrine limitations and incorporates various elements of these limitations into proposed legislative language establishing a preemptive federal right of publicity.
Whose Who? The Case for a Kantian Right of Publicity,
49 Duke Law Journal
Available at: http://scholarship.law.duke.edu/dlj/vol49/iss2/1