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.
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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.
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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.”
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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.
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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.