Columbia Law School

Issue: Volume 38, No. 2

A Mask that Eats into the Face: Images and the Right of Publicity

Rebecca Tushnet

In their eagerness to reward celebrities for the power of their “images,” and to prevent other people from exploiting those images, courts have allowed the right of publicity to distort the First Amendment. The power of the visual image has allowed courts to create an inconsistent, overly expansive regime that would be easily understood as constitutionally unacceptable were the same rules applied to written words as are applied to drawings and video games. The intersection of a conceptually unbounded right with a category of objects that courts do not handle well has created deep inconsistencies and biases in the treatment of visual and audiovisual media, particularly comics and video games. These problems show up both in First Amendment defenses and in copyright preemption analysis. The possible arguments one might offer for treating images differently are insufficient to justify this disparity. The Article concludes that, absent the distortion produced by images, the right of publicity would properly be understood as sharply limited.

Prefaces to Scalia/Ginsburg: A (Gentle) Parody of Operatic Proportions

Justice Ruth Bader Ginsburg & Justice Antonin Scalia

Preface by Justice Ruth Bader Ginsburg:

Scalia/Ginsburg is for me a dream come true. If I could choose the talent I would most like to have, it would be a glorious voice. I would be a great diva, perhaps Renata Tebaldi or Beverly Sills or, in the mezzo range, Marilyn Horne. But my grade school music teacher, with brutal honesty, rated me a sparrow, not a robin. I was told to mouth the words, never to sing them. Even so, I grew up with a passion for opera, though I sing only in the shower, and in my dreams.

One fine day, a young composer, librettist and pianist named Derrick Wang approached Justice Scalia and me with a request. While studying Constitutional Law at the University of Maryland Law School, Wang had an operatic idea. The different perspectives of Justices Scalia and Ginsburg on constitutional interpretation, he thought, could be portrayed in song. Wang put his idea to the “will it write” test. He composed a comic opera with an important message brought out in the final duet, “We are different, we are one”—one in our reverence for the Constitution, the U.S. judiciary and the Court on which we serve.

Would we listen to some excerpts from the opera, Wang asked, and then tell him whether we thought his work worthy of pursuit and performance? Good readers, as you leaf through the libretto, check some of the many footnotes disclosing Wang’s sources, and imagine me a dazzling diva, I think you will understand why, in answer to Wang’s question, I just said “Yes.”

Preface by Justice Antonin Scalia:

While Justice Ginsburg is confident that she has achieved her highest and best use as a Supreme Justice, I, alas, have the nagging doubt that I could have been a contendah—for a divus, or whatever a male diva is called. My father had a good tenor voice, which he trained at the Eastman School of Music. I sang in the Georgetown Glee Club (directed by Washington Post music critic Paul Hume, whom President Truman rewarded with a valuable letter for his review of Margaret’s singing). I have sung in choirs and choral groups much of my life, up to and including my days on the D.C. Circuit. And the utter peak of my otherwise uneventful judicial career was an evening after the Opera Ball at the British Ambassador’s Residence, when I joined two tenors from the Washington Opera singing various songs at the piano—the famous Three Tenors performance.

I suppose, however, that it would be too much to expect the author of Scalia/Ginsburg to allow me to play (sing) myself—especially if Ruth refuses to play (sing) herself. Even so, it may be a good show.


ISSN 2161-9271 (Online) | 1544-4848 (Print)

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