Giving the Right of Publicity a Much-Needed Makeover for the Social Media Revolution

Vol. 5 No. 2

By

Lynne M.J. Boisineau is a partner at McDermott Will & Emery LLP in Irvine, California. She focuses her practice on trademark prosecution, enforcement, and litigation support, as well as copyright, right of publicity, and domain name matters that touch on trademark law. She can be reached at lboisineau@mwe.com.

What does it mean to be a celebrity? There was a time when the answer to that question was fairly clear to most people. However, the technology boom that began during the second half of the 20th century changed all of that, and the laws regarding the protection of a person’s name, portrait, picture, likeness, or voice have struggled to keep up with the evolving media in which these types of intellectual property can be exploited. As the dissemination of photographs, sound files, and videos went from cumbersome and expensive to something that most kindergartners can master, a celebrity is no longer necessarily a well-known actor, singer, or public figure. Overnight sensations born of reality shows, celebutants, teens featured in viral videos, influential CEOs, average citizens involved in extraordinary newsworthy events, popular bloggers, and even children of famous parents can be viewed as “celebrities” by many Americans. With this expanded notion of “celebrity” come unique challenges in striking a balance between these individuals’ rights to protect their names/images and capitalize on the exploitation of same during the frequently short length of time that they are “famous,” and the First Amendment protections afforded to those reporting newsworthy events or using someone’s name/likeness for purposes of criticism or commentary.

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