In 2006, Stacey Dogan and Mark Lemley published the now classic article “What the Right of Publicity Can Learn from Trademark Law.” There they urged us to “[r]econceiv[e] the right of publicity as a trademark-like right,” particularly because “looking at the right of publicity through the lens of trademark law offers logical ways to limit the right.” Right of publicity law’s failure to incorporate trademark law’s limitations had resulted, they argue, in the right of publicity functioning as “a mutant version of trademark policy . . . .”
I argue here in response that regrettably, notwithstanding Dogan and Lemley’s good advice, the reality is that it is trademark law that has become more like right of publicity law. Indeed, trademark law is in danger of becoming a “mutant version” of right of publicity policy. To defend this claim, I will first briefly survey the conventionally-recognized similarities and differences between trademark law and right of publicity law. I will then propose a more complicated—and, I think, more accurate—comparison between the two areas of law and argue that they are converging in many important ways, giving us the worst of both worlds. In what follows, I will focus more on trademark law, not only because many other contributions to this Symposium thoroughly discuss right of publicity law, but also because I think we should be especially concerned with trademark law’s mutation in the age of Burwell v. Hobby Lobby Stores and Citizens United v. Federal Election Commission into a kind of right of publicity law for corporate personhoods.
Before I proceed, I should emphasize one point from the start. I very much doubt that Dogan or Lemley would disagree with the general thrust of my argument, not least because much of it draws upon other work by them.