[Guest book review] ‘The Right of Publicity: Privacy Reimagined for a Public World’

Former Guest Kat Mathilde Pavis kindly provides a review of Jennifer Rothman, ‘The Right of Publicity: Privacy Reimagined for a Public World’.

If you have always thought of the right of publicity as a blessing for the rich and famous: think again… and read Jennifer Rothman’s book. This book is best described as a biography of the right of publicity in the United States. The author synthesizes a decade’s worth of research on the right of publicity to offer readers the long view on this cause of action in the United States.

In doing so, the author debunks a number of myths about publicity protection in the US. This alone makes the book a must read for anyone interested in publicity, personality or image right protection, a topic in which the law in the United States is often cited for comparison.

The central thesis of the book is that the right of publicity comes from, and should have stayed within, the confines of the right of privacy. The argument built by the author in support of this argument is compelling. Rothman argues that the comparison drawn by lawyers between the publicity right and intellectual property (such as copyright), has had a negative impact on the development of the publicity right.

This comparison (or analogy) forced the publicity right into the logic of alienable property, which eventually made the right fully transferable to third parties. Where most would see alienability as one of the doctrine’s attractive features, Rothman frames it as destructive. There is a dark side to transferable rights lurking behind the allure of contractual freedom and commercialization opportunities.

Think about this – when your right of publicity is classified as an alienable right (as is the case in many US states), in proceedings such as divorce or bankruptcy, it can be transferred by a court, without your consent, to third parties. This leaves your ex-spouse or creditors free to decide where, when and how your face can be put on mugs or shampoo bottles. The idea of having transferable property rights in your persona does not feel all that protective now, does it?

Rothman explains that the journey of the publicity right to a form of intellectual property is attributable to jurists’ limited knowledge of tort-based privacy protections existing at the time (notably, in the period between 1950s-1970s). The publicity right as we know it today would not have seen light of day, had commentators known that the right of privacy was versatile enough to simultaneously protect individuals from unwanted public attention and allow the commercialization of their persona.

Chapter by Chapter

The book consists of eight chapters (excluding introduction and conclusion), divided into three parts. In Part 1, the first three chapters of the book trace the roots of the right of publicity within the right of privacy in the late 1800s. Part 2 (featuring chapters 4 and 5) focuses on the expansion of the right of publicity between the 1950s and the 1970s, as it became unmoored from privacy protection.

Part 3 points to the main issues characterizing the right of publicity today. Specifically, chapter 6 exposes the disadvantages of framing the right of publicity as an alienable right. Chapter 7 describes the difficult relationships between the right of publicity and the right of free speech under the First Amendment of the US Constitution. Chapter 8 then looks at the conflicts between the right of publicity and copyright.

This book will be useful to anyone interested in the protection of an individual’s persona, identity and privacy. The book is written in a manner accessible to law and non-law specialists alike, as well as to readers beyond academia.

As previously mentioned, the book considers exclusively US law. Nevertheless, the book will be relevant to anyone from other jurisdictions writing on publicity, personality or image right protection. All too often, commentaries on UK or European doctrines make quick references the ‘American’ right of publicity for contrast, giving the (false) impression that this area of law is homogeneous across the US. This, despite the fact that the right of publicity is governed by state, rather than federal law, when it is not.

The book guides readers through some of the key differences between the applicable law in various states and indicates useful resources to follow up on these distinctions. The author’s website, “Rothman’s Road Map to the Right of Publicity”, is also helpful in this regard.

The Right of Publicity: Privacy Reimagined for a Public World, by Jennifer E. Rothman. 2018. Harvard University Press. ISBN 9780674980983. 256 pages. Hardcover: $41.00 • £32.95 • €37.00. Available here.