ArticlesVolume 42, No. 3 (2019)

The Right of Publicity’s Intellectual Property Turn

Jennifer E. Rothman

Professor of Law and the Joseph Scott Fellow at Loyola Law School, Loyola Marymount University, Los Angeles, and an affiliated fellow at the Yale Information Society Project

Abstract

I will first consider the case often wrongly credited with creating the right of publicity―Haelan Laboratories v. Topps Chewing Gum―and then reveal the right of publicity’s true origins, explaining when the actual turn to becoming an independent IP right took place. I will conclude with some challenges posed by this IP turn, as well as some implications that flow from this resurrected story of the right of publicity’s development.

Almost twenty-five years ago, in 1995, Columbia Law School organized another Symposium on the right of publicity.9 Many of the concerns raised then and the disagreements voiced at that time remain today. But none of the speakers at the time accurately understood the history of the right of publicity’s development. As a result, the conversation stood on a shaky foundation—one that has long skewed our understanding of the right of publicity, its objectives, and the controversies that surround it. Let us begin today’s Symposium by setting the record straight.