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49 Duke L.J. 383 (1999-2000)
Whose Who - the Case for a Kantian Right of Publicity

handle is hein.journals/duklr49 and id is 397 raw text is: Duke LawJournal VoLuME 49 NOVEMBER 1999 NUMBER2 WHOSE WHO? THE CASE FOR A KANTLAN RIGHT OF PUBLICITY ALICE HAEMMERLIt ABSTRAct Rapidly developing technological opportunities for unauthorized uses of identity-from virtual kidnapping to digitalcasting-coin- cide 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 tradi- tionally 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 philosophi- cal 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 pri- vacy rights and explicitly embraces both the economic and moral fac- ets of the individual's need to control the use of his identity. Second, t Dean of Graduate Legal Studies and International Programs, Columbia Law School. A.B., Vassar College; M.Sc., London School of Economics; M.A., Ph.D., Harvard University; J.D., Columbia Law School. Thanks to Mike Dorf, George Fletcher, Jane Ginsburg, Kent Gre- enawalt, Ken Jones, John Manning, Henry Monaghan, Jeremy Waldron, and, in particular, Robert Ferguson, for their helpful comments on various drafts, and to Jack Kernochan for his encouragement. 383

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