The Chapman Law Review is proud to publish Brandon Anand’s article: It’s Time for a Precise, Narrowly Tailored Federal Right of Publicity. Below, you will find an excerpt from the article.

Forthcoming: It’s Time for a Precise, Narrowly Tailored Federal Right of Publicity

By Brandon Anand

Introduction

In 2022, twenty plaintiffs brought a putative class action claim against a mass media conglomerate for misappropriating their names and identities in disclosing the information to third parties. They alleged different violations under their nine respective state right of publicity statutes. Although the claims brought were all state claims with no federal equivalent, the parties ultimately stipulated to having the case consolidated and decided by one court. In In re Hearst Communications State Right of Publicity Statute Cases, the court had to interpret the effect of nine different publicity statutes in the context of identical factual allegations. The plaintiffs and defendant stipulated that the “statutes are substantially similar and will include overlapping issues of law,” reasoning that one court could dispose of the nine statutes at the same time and essentially address the various state statutes as if they were one federal law. Without this agreement between the parties, and acceptance of that agreement by the court, widely different holdings may have resulted. Even with the agreement, substantial resources (both private and public) were necessitated by the lack of one uniform law. The right of publicity (also now colloquially referred to as “N.I.L.” or “name, image, likeness” in the sports world) is rooted in privacy rights and is currently regulated by state law. Although the ends sought are essentially the same, the laws vary considerably from state to state. For example, although most jurisdictions consider the interest a property right, other states hold it as a privacy right. Without uniformity between states, transactions are likely to incur higher costs as parties will have to grapple with laws that are similar, but still different enough to require additional due diligence to address. Similarly, with the current patchwork system, litigation costs are increased with plaintiffs encouraged to forum shop for the most beneficial jurisdiction and defendants encouraged to look for the most restrictive jurisdiction, thus creating unnecessary procedural waste. A precise, narrowly tailored federal right of publicity will promote creativity and business rather than stifle it, and also protect First Amendment rights. In this article, Part I discusses whether the right of publicity should be considered a privacy or property right, and illustrates the importance of a publicity right. Part II provides an overview of the lack of consistency and uniformity between states’ right of publicity statutes. Finally, Part III examines what a federal right of publicity should look like and how a federal right would apply in practice.