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34 Cardozo Arts & Ent. L.J. 401 (2016)
Disciplining the Right of Publicity's Nebulous First Amendment Defense with Teachings from Trademark Law

handle is hein.journals/caelj34 and id is 429 raw text is: DISCIPLINING THE RIGHT OF PUBLICITY'S NEBULOUS FIRST AMENDMENT DEFENSE WITH TEACHINGS FROM TRADEMARK LAW* WEE JIN YEO* Abstract Academic commentators, practitioners and students alike have written a flurry of articles on the First Amendment defense in right of publicity law, as courts cannot seem to agree on the appropriate balancing test that should be used to weigh celebrities 'publicity rights against the public's rights to use celebrity personas as communicative tools. Various tests have been proposed as the panacea, but are ultimately unsatisfactory, due to inadequacies that prevent them from striking a normatively desirable balance. This Article suggests that the core normative justification behind the right of publicity is the prevention of unjust enrichment. Thus, following recent developments in trademark law evincing the courts' unwillingness to allow free riders to reap what they have not sown, limiting doctrines in trademark law may provide helpful guidance in the right of publicity context. Specifically, it is proposed that a principled First Amendment defense may be fashioned by adopting a modified version of trademark law's First Amendment balancing test. IN TRO DU CTION ................................................................................. 402 I. OVERVIEW OF THE RIGHT OF PUBLICITY IN THE UNITED STATES ... 405 A. Development of an Independent Right of Publicity Distinct From Its Historical Privacy Roots .................... 405 B. From Haelan to the Present .............................................. 408 Permission is hereby granted for noncommercial reproduction of this Article in whole or in part for education or research purposes, including the making of multiple copies for classroom use, subject only to the condition that the name of the author, a complete citation, and this copyright notice and grant of permission be included in all copies. . LL.M. (Boston University School of Law); LL.B. (Hons) (National University of Singapore). I would like to thank my supervising mentor, Professor Stacey Dogan, for her invaluable guidance and the Editors of Cardozo Arts & Entertainment Law Journal for their assistance in bringing my Article to publication. I would also like to thank Professor David Tan for inspiring my passion in Entertainment Law. Last but not least, I would also like to thank my beloved family, fiancee Koh Jia Wen and best friend Philip Tan for their unwavering support.

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