Within the Labyrinth of the Law
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Constitutional Law
The Journal of Things We Like (Lots)
https://conlaw.jotwell.com
Within the Labyrinth of the Law
Author : Lyrissa B. Lidsky
Date : May 1, 2020
Robert C. Post and Jennifer E. Rothman, The First Amendment and the Right(s) of Publicity, 130 Yale L. J. __
(forthcoming, 2020), available at SSRN.
It only takes two facing mirrors to build a labyrinth.- J.LBorges
A labyrinth has no easily discernible path. It leads to frustration and wasted time on the part of the uninitiated, who find
themselves foiled by twists, turns, and blocked escapes. We easily imagine the bellowing roars of frustration of the
mythological beast, the Minotaur, trapped in his unlighted labyrinth on the Isle of Crete. When we encounter a labyrinth,
what we need is a guide to lead us from frustration with the task to a possible solution. An image comes to mind of
Ariadne, daughter of the King of Minos, who provided the knowledge and the tools to allow the (admittedly ungrateful)
Theseus to escape the maze.
Professors Robert C. Post and Jennifer E. Rothman provide both guidance and solution to a labyrinthine problem in
their forthcoming article, The First Amendment and the Right(s) of Publicity. That problem, as suggested by the
article's title, is accommodating the interests protected by the right of publicity with those protected by the First
Amendment. Post and Rothman traverse the labyrinth created by existing doctrine from two directions. First, they
clarify the varied and distinct interests that the right of publicity protects, or ideally should protect. If this were the
article's only contribution, it would be a tremendously valuable one, and judges and lawyers willing to accept their
guidance could begin to construct coherent doctrine. But their second contribution is to point away from the sea of
inconsistent, vague, and unhelpful First Amendment tests cluttering current doctrine toward more stable yet nuanced
analysis. (P. 29.) Along the way, they even propose four new torts, and what's not to love about new torts?
As Post and Rothman persuasively demonstrate, much of the problem with the right of publicity is that the doctrine has
focused on defendants' conduct (namely, the appropriation or use of a name or likeness) rather than the harm or
harms the tort is meant to remedy. (P. 2.) They seek to solve this problem by teasing from the caselaw the numerous
distinct interests the right is designed to protect.
Post and Rothman show that that there is not one right of publicity but four. (P. 5.) The first right the tort attempts to
vindicate is the right of performance. The right of performance is violated when a defendant uses the performance of
another without consent. (P. 8.) This right was at issue in the Supreme Court's only right of publicity decision,
Zacchni v. Scrivps-Howard Broadcasting, which involved the broadcast of the entire act of a human cannonball. What
the Court's decision in Zacchini protected, at least according to Post and Rothman, was not Mr. Zacchini's identity but
his performance-a discrete set of acts in space and time. (P. 12.) Protecting performances protects an interest akin
to copyright and encourage[s] the creation of unfixed performances that may not be copyrightable. (P. 12.)
The second interest the right of publicity vindicates is the right of commercial value. This right allows individuals to reap
commercial or market value from their identity. (P. 17.) In describing this right, Post and Rothman are careful to
disclaim the proposition that the interest protected is a generalized property right in the commercial value of one's
identity. (P. 18.) Instead, they identify three concerns underpinning cases involving rights of commercial value. One
concern, which they denominate confusion, arises when the use of a plaintiff's name or likeness creates confusion
about his participation with or sponsorship of the defendant or the defendant's products or services. (P. 19.) A second
concern is diminishment, namely that the defendant's use of plaintiff's likeness or identity in a commercial context will
lessen its market value. (P. 20.) The final concern is unjust enrichment, which occurs when a defendant uses the
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Within the Labyrinth of the Law
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