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U. S. Copyright Office Considers a Federal Right of Publicity

24 May 2019

From Rothman’s Roadmap to The Right of Publicity:

In a report issued on April 23rd by the Register of Copyrights, the U.S. Copyright Office suggests that the lack of uniformity in state right of publicity laws may require Congressional intervention.

The call for Congress to consider such a right arose in the course of a 107-page report issued by the office on the status of moral rights in the United States. The focus of the report is on moral rights for authors, rather than on personality rights more generally. The report, titled Authors, Attribution, and Integrity: Examining Moral Rights in the United States, primarily focuses on the international treatment of moral rights, and the federal regime in the United States, particularly under the Copyright Act (including the Visual Artists Rights Act (VARA)) and the Lanham Act.

The report focuses on “the rights of attribution (the right to be credited as the author of one’s work) and of integrity (the right to prevent prejudicial distortions of one’s work).” As part of this inquiry, the report identifies various state laws that potentially serve to protect the moral rights of authors and performers.

. . . .

The inclusion of state privacy and publicity laws in the report is solely focused on how these laws can help authors (and performers) protect their moral rights. In particular, the report notes that these laws can provide claims against misattribution, and when a performance is usurped without permission.

. . . .

The report importantly highlights the current chaos in right of publicity laws. The report notes that the “appearance of near-uniformity in adoption of some version of the right of publicity belies the degree to which the exact contours of the right differ significantly from jurisdiction to jurisdiction.” Because of this lack of uniformity, the report suggests that federal intervention may be advisable, albeit with some ambivalence: “If Congress wished to address some of the uncertainty and ambiguity created by the lack of harmonization among state right of publicity laws, Congress might consider adopting a federal right of publicity law.”

. . . .

The report also wisely highlights potential pitfalls of any federal right of publicity law. The report points to the need to determine whether the right should be transferable and under what conditions. I have strongly advocated against making the right transferable, at least when such alienability is unfettered. Allowing the right of publicity to be owned by anyone other than the underlying person jeopardizes our ability to maintain ownership of our own names, likenesses, and voices.

. . . .

Further on in the report, the Copyright Office notes the substantial debate on whether moral rights should be waivable or alienable, observing that when such waivers and transfers are allowed they often become standard. Such a result undercuts the provision of moral rights protections in the first place. This concern is true in the extreme when it comes to allowing transfers of rights of publicity, because what is being transferred are not rights over an external work, but rights to one’s own personal identity.

Another concern with regard to drafting a federal version of the right of publicity is also one that I have raised: quoting from my book, the report notes that providing a postmortem right of publicity raises taxation issues, and could “force heirs to commercialize the deceased person’s identity to pay off [estate tax] debt.”

Link to the rest at Rothman’s Roadmap to The Right of Publicity

The first section of the Copyright Office Report (after the Executive Summary) is a quick overview of the Right of Publicity, however, if you want more of an introduction, the Rothman’s Roadmap site is a good place to start.

Copyright/Intellectual Property

5 Comments to “U. S. Copyright Office Considers a Federal Right of Publicity”

  1. Allowing the right of publicity to be owned by anyone other than the underlying person jeopardizes our ability to maintain ownership of our own names, likenesses, and voices.

    Um… Read the contract? Refuse to sign it if it includes unacceptable transfers of the rights to any of those things?

    Maybe I’m just stupid…

    • Felix J. Torres

      Not you.
      But there’s a lot of people who (reportedly) need to be protected from their own choices. From a politician’s point of view it is better to foster a culture of dependency than to foster critical thinking. The latter might result in them getting kicked out of office, with consequent loss of power and perk$$$.

  2. ” of integrity (the right to prevent prejudicial distortions of one’s work).”

    This looks like an attempt to reduce free speech due to hurt feelings. If it’s true defamation, then sue them. Otherwise, hurt feelings shouldn’t impede free speech.

  3. When I read the statement about refusing to transfer the right of publicity, I thought first in terms of divorces, then others like agents, but the danger of publishers & producers claiming these rights is real, too.

    At first reading, this proposal seems like a good idea, but as always, the devil is in the details. What about rights of free speech? Will anyone who posts a negative review or makes a critical statement the subject disagrees with be slapped with a suit or criminal charge? It’s a fine line.

    • Felix J. Torres

      It’s like the small claims court idea for copyright. On paper it sounds good…in practice, the potential for mischief is very high.

      The problem is that “solutions” tailored for certain segments can lead to major problems in others and federalized “solutions” tends to produce overbroad “catchall” sledgehammer. And “solutions” driven by vague notions such as “moral rights” are the most dangerous since there is no clear definition of what is being protected. Trying to legislate morality rarely ends well.

      Sometimes a hodge-podge of local solutions is preferable.

      Paraphrasing the old line: “Adopt in haste, repent at leisure.”

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