Part II: The Right to Publicity: 31 Years Since Madow’s Scathing Verdict, Yet……. The Show Must Go On?

Continuing to debunk the myth around the need for a higher degree of protection to celebrities, Akshat Agrawal in Part II of his post discusses some more repudiations justifying the use of celebrities’ names, images, likeness and voices. Akshat is a practicing litigator working at Saikrishna and Associates. He did his LLM from Berkeley Law in 2023 specialising in IP and Tech law. His previous posts can be found here. He would like to thank Sneha Jain and Angad Makkar for their comments and discussion. He adds the following disclaimer: After some discussion around an earlier draft and an admitted history of verbosity, I would also like to acknowledge the usage of Claude.ai for helping me re-frame the draft more succinctly and in a reader friendly manner. Views expressed here are personal.

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[Part II] The Right to Publicity: 31 Years Since Madow’s Scathing Verdict, Yet……. The Show Must Go On?

By Akshat Agrawal

C. “It Protects Them From Exploitation”

The Claim: Capitalizing on celebrities’ identity subjects their personality rights to potential abuse and jeopardizes their career and livelihood.

The Reality Check:

1. The Myth of Total Ownership: No one, be it a celebrity or a carpenter has a property right to extract and internalize the full value of their labour. Why should celebrities be a special case? In no other area of life do we grant individuals the right to capture all values derived from their work or existence. A beautiful building adds value to a neighborhood, but we don’t demand that passersby pay the architect for the privilege of looking at it. Why should celebrities be granted this extraordinary right to control all value associated with their public image?

2. The Positive Externality Principle: Society generally doesn’t require compensation for all benefits derived from others’ efforts. A food vendor near a stadium may charge ‘supramarginal’ prices because of the crowd attracted by the game inside, yet we do not require him to compensate the stadium owner. Our economy and society function through a complex web of uncompensated benefits. Celebrities, like sports teams or beautiful buildings, create positive externalities that benefit others. This is not a bug in the system; it’s a feature of how culture and commerce interact.

3. The Missing Harm: Non-deceptive uses of celebrity likeness don’t create obvious social costs or disincentives for celebrities to pursue their primary activities. There’s no evidence of inefficiency in cultural production when celebrity likeness is used non-deceptively. This point is crucial. For a legal protection to be justified, there should be clear harm prevented or benefit provided. In the case of non-deceptive uses of celebrity images, it’s not clear what harm is being prevented. Celebrities continue to pursue fame and fortune even in contexts where their image rights are less protected, by practicing the vocations that generate fame in the first place.

4. The Incentive Illusion: There is no incentive loss, as the only kind of incentives that the law is concerned with are enablement incentives and not incentives that cater to luxurious accumulations. Legal intervention by providing exclusionary rights in informational goods, which are often public goods due to their non-rivalrous and non-excludable nature, is for a specific purpose. We bear the social cost on access and downstream creation to enable production of information goods, as they are costly to create and cheap to imitate. However, this production problem does not exist with publicity rights, as the source of enablement or a revenue stream that incentivizes production already exists (through the vocation that generates the fame). The law should only be concerned with providing incentives that enable creative production, not with guaranteeing additional income streams for already successful individuals.

Non-deceptive uses of celebrity likeness don’t create obvious social costs or disincentives for celebrities to pursue their primary activities. Celebrities are already highly incentivized to cultivate their public image through their primary income sources (acting, sports, music, etc.). The idea that they need additional incentives in the form of publicity rights to motivate them is simply not credible. To the contrary, conferring an exclusionary right over name and likeness (including voice, etc.), de hors deception or defamation, generates significant inefficiencies for downstream cultural production, without any efficient tradeoff. There is thus, no viable rationale, to provide any economic right or a right to exclude over such intrinsic human traits that are part of the cultural grammar as a result of socially generated “stardom”.

5. The Misappropriation Misconception: It is not commercial appropriation that is actionable but commercial mis-appropriation – appropriation that causes ‘harm’ which is socially recognized and not individually stated. This distinction is crucial. Not all uses of a celebrity’s image or likeness are harmful, even if they are commercial in nature. The law should be concerned with preventing genuine harm, not with allowing celebrities to monetize every instance of their image being used. There is no common law prohibition from benefiting from the commercial efforts of others, unless it causes a socially recognised “harm”, often known as a negative externality which has an adverse effect either on incentives or a socially desirable pursuit. Take for instance- passing off- it requires mis appropriation by causing deception – a socially recognised harm. Take IP rights- it causes mis appropriation as it causes static inefficiencies- de-incentivising pursuit of socially valuable cultural and technological innovations. As already observed above- there is no such inefficiency caused by virtue of non-deceptive cultural use of images, names and likeness of celebrities.

6. The Icing on the Cake: Unlike copyright, which protects even starving artists, the right of publicity only provides the proverbial ‘icing on the cake’ to already established stars. Copyright serves a clear purpose in incentivizing creative production and protecting the livelihoods of artists at all levels. Publicity rights, on the other hand, primarily benefit those who are already successful and wealthy. Publicity rights are less about protecting vulnerable creators and more about extending the earning power of celebrity brands.

D. “It Stops Others From Profiting Off Their Fame”

The Claim: Unauthorized use of name, likeness, and voice can lead to unearned commercial gain for another party.

The Reality Check:

1. The Labor Myth: Fame is not solely the result of individual labor but a complex social process. As previously noted, Even the celebrity herself does a good deal of ‘borrowing’ and ‘free riding’ on others’ ideas, images, and sounds. If fame is a collaborative creation involving the media, fans, and broader cultural trends, why should the celebrity have a monopoly on its commercial exploitation?

2. Transformation Creates Value: Many uses of celebrity likeness, especially in AI contexts, create new value through transformation. These transformative uses often contribute to cultural dialogue without causing harm to celebrities. This is particularly relevant in the digital age. When artists, meme creators, or AI systems repurpose celebrity images, they’re often creating entirely new cultural works with new meanings using the celebrity as a part of the grammar in the language of cultural production. These transformative uses can add significant value to our cultural discourse without detracting from the celebrity’s own earning power.

3. No Clear Rationale: As explained above, there is no viable rationale, to provide any economic rights over intrinsic human traits. Unlike other forms of intellectual property, there’s no clear justification for granting celebrities this level of control over their public image. It doesn’t serve a clear social purpose, doesn’t incentivize creation in the way that patent or copyright law does, and potentially harms cultural discourse.

4. The Cumulative Nature of Culture: Cultural production is always and necessarily a matter of reworking, recombining, and redeploying already-existing symbolic forms, sounds, narratives, and images. Culture doesn’t progress through entirely original creations springing forth from individual geniuses. It evolves through recombination, reinterpretation, and dialogue with existing cultural elements. By restricting the use of celebrity images, which are significant cultural symbols, we risk stifling this process of cultural evolution.

E. “It Protects Consumers From Deception”

The Claim: Unauthorized platforms cannot mislead consumers into believing they are permitted to collect fees by misappropriating celebrities’ personas.

The Reality Check:

1. The Deception Detection Fail: The law should distinguish between uses that cause genuine consumer confusion and those that don’t. Non-deceptive, non-defamatory uses play a crucial role in cultural dialogue and should be given more leeway. This point highlights the importance of nuance in applying publicity rights. Not all unauthorized uses of a celebrity’s image or likeness are deceptive or harmful. Many uses, particularly in artistic or commentary contexts, are clearly not attempting to mislead consumers about celebrity endorsement.

2. Endorsement Overreach: Extending endorsement rights to all uses of celebrity likeness is an overreach. It assumes that any use of a celebrity’s image implies endorsement, which is not necessarily true in cultural or artistic contexts. This assumption fails to account for the many ways celebrity images are used in our culture. When an artist creates a portrait of a famous person, or a comedian impersonates a celebrity, or a mimicry artist performs their skill, no reasonable person would assume this implies endorsement. Treating all uses as potential endorsements ignores the rich tradition of cultural commentary and artistic expression involving public figures.

3. We Already Have Laws for That: Existing laws on fraud, misrepresentation, and false advertising already protect against genuine cases of consumer deception. This point underscores the redundancy of using publicity rights to prevent consumer deception. Our legal system already has robust protections against false advertising and consumer fraud. Adding another layer of protection through publicity rights is unnecessary and potentially harmful to free expression.

F. “It’s a Privacy Issue”

The Claim: Unauthorized use violates the right to privacy of the celebrity and amounts to dilution and blurring, which are actionable torts.

The Reality Check:

1. Privacy vs. Profit: Privacy rights are fundamentally about protecting personal information and dignity, not commercial interests. This distinction is crucial. Publicity rights are often framed as a privacy issue, but their primary function is to allow celebrities to profit from their image. This conflation of privacy and property rights is problematic and potentially undermines genuine privacy protections.

2. The Harmless Dilution: Not all uses that could be considered “dilution” actually cause harm to the celebrity’s brand or image. Many uses may actually enhance the celebrity’s cultural relevance and value. This point challenges the assumption that any unauthorized use of a celebrity’s image necessarily harms their brand. In many cases, cultural references or artistic uses of celebrity images can increase their cultural cachet and reinforce their status as important public figures.

3. “The Public Interest” Trump Card: There’s a strong public interest in allowing cultural dialogue and commentary involving public figures. This interest often outweighs the marginal harm of potential “dilution.” This balance is critical. While celebrities have a legitimate interest in protecting their reputation, this must be weighed against the public’s interest in free expression and cultural commentary. In many cases, the social value of allowing unrestricted use of celebrity images in cultural discourse outweighs any potential harm to the celebrity’s brand.

In the final part of this post, I’ll discuss the actual cost of granting such broad rights to celebrities.