Property\u27s End: Why Competition Policy Should Limit the Right of Publicity

The right of publicity is an intellectual property right that empowers celebrities to prohibit unauthorized uses of their names, images, and identities. Since its inception a half-century ago, the right has been an enigma. Publicity rights, critics argue, are unnecessary to stimulate the pursuit of fame, unneeded to manage the value of publicity, and undeserved in any recognized moral sense. Yet, to the amazement of some, and the consternation of many, this ostensibly persuasive critique has had little practical impact on lawmakers. This Article proposes that competition policy should delineate the scope of the right of publicity. Some judges and legal commentators write as if the limits of property are set independently of other social interests. The value of competition, they say, plays no direct role in defining the scope of property rights. Through a careful review of case and statutory law, this Article shows that this view is mistaken. In fact, competition policy plays a critical role in defining property’s end, limiting the scope of all recognized property rights when those rights enable owners to stifle meaningful competition. The antitrust laws and competition-based regulatory programs have repeatedly required owners to share or sell all forms of property in order to ensure that consumers receive the benefits of competition. Applying this insight to the right of publicity would enable courts to narrow the scope of publicity rights whenever a celebrity’s exercise of that right would restrain competition. This approach would curb the worst abuses in the publicity rights cases without casting doubt on the legitimacy of other property rights