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Introduction
The time has come for a federal right of publicity statute. Because of technological advances, expressive works and advertisements are increasingly disseminated on a national, if not international, scale. Right of publicity law, however, remains entirely a creature of state law. Different states have widely divergent right of publicity laws. This divergence results in a multistate patchwork that forces national content producers to engage in self-censorship and tailor their content to the laws of states that provide the least amount of protection to free speech rights.
The outsized role of Indiana's right of publicity law provides a good example. In recent years, numerous lawsuits have been brought against non-Indiana defendants for violations of Indiana right of publicity law by celebrities and heirs of deceased celebrities who have had little or no connection to Indiana. The reason is simple. Indiana's right of publicity statute is the most plaintiff-friendly in the nation, and it contains sweeping jurisdictional and choice of law provisions. This is no accident. The statute's principal author is the CEO of a powerful Indiana-based management company that represents huge numbers of estates and heirs of deceased celebrities, ranging from Marilyn Monroe to Babe Ruth.
National content providers should not be required to navigate a hodgepodge of right of publicity laws. They should not have to tailor their content to laws such as Indiana's that aim to create a de facto national law that inadequately protects other states' interests and their citizens' First Amendment rights. The best solution to this problem is a federal right of publicity statute that expressly preempts state law and brings uniformity and predictability to right of publicity law.
Need for a Federal Right of Publicity Statute - A Brief History
Much of the lack of uniformity in state right of publicity laws is attributable to the "spasmodic" development of the right of publicity and its divergent and often controversial justifications.1 The historical origin of the right of publicity lies in the law of privacy.2 The right of publicity is linked to the "misappropriation" prong of the four-part invasion of privacy tort analyzed by scholar William Presser and later adopted by the Restatement (Second) of Torts and numerous states.3
Because of its origins in privacy law, the cause of...