The right of publicity gives people the right to control the use of their names and likenesses for commercial purposes. For years, courts have struggled to make sense of two dimensions of this right--what it means to use a name or likeness "commercially," and what aspects of a person's "likeness" are protected against appropriation. In the absence of any clear theoretical foundation for the right of publicity, the meanings of these terms have steadily swelled, to the point at which virtually any reference to an individual that brings financial benefit to someone else qualifies as a violation of the right of publicity. At the same time, the courts have developed no meaningful counterweight to this ever-expanding right. Instead, they have created a few ad hoc exceptions in cases where the sweeping logic of the right of publicity seems to lead to results they consider unfair...

 

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