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College Athletes and the Right of Publicity, Part 2

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Written By: Andrew Sensi

This is the second of three posts examining the right of publicity and the lawsuits initiated by former student-athletes against the NCAA and Electronic Arts.  The first post focused on defining the right of publicity and tracking its history.  In that post, I argued that the level of protection afforded by the right of publicity can be analogized to a pendulum which swung initially from no protection in the early half of the 20th century, to the peak of its protection in the latter half of the century, and since approximately 1993i, has begun a swift swing back towards a lack of meaningful protection.

One of the primary reasons for this shift is a change in attitudes about the justifications for and criticisms of the right of publicity.  In this post, I will discuss the array of justifications and criticisms, and argue that the criticisms have gone too far.

John Locke, Natural Rights, Unjust Enrichment, and Incentives to Create

"It would seem to be a first principle of Anglo-American jurisprudence, an axiom of the most fundamental nature, that every person is entitled to the fruit of his labors."ii This Lockean labor theory is often combined with a natural rights argument that a person's identity is their own property, to control as they see fit.  Combined, they form perhaps the strongest and most cited justification for the right of publicity. Proponents of this theory would agree that, "[I]n most instances a person achieves publicity values of substantial pecuniary worth only after he has expended considerable time, effort, skill, and even money."iii

Related to these justifications is the goal of preventing unjust enrichment. The Supreme Court put it best when it stated:

The rationale for protecting the right of publicity is the straightforward one of preventing unjust enrichment by the theft of good will. No social purpose is served by having the defendant get free some aspect of the plaintiff that would have market value and for which he would normally pay.iv

In combination, these theories seek to justify the right of publicity on the grounds that a person's identity can become valuable through that person's labor and allowing others to take this value without providing compensation is unjust. 

Similarly, proponents of the right of publicity argue that it provides an incentive for people to work to transform their identities into marketable commodities. Proponents of this incentive argument believe that people "should be given an economic incentive to undertake socially enriching activities which require entering the public scene." The incentive justification has been recognized and supported by several courts, including the Supreme Court.vi

Critics of the right of publicity have rejected these justifications and argue that (1) a person's fame is not the result of their labor, and even if it were, the value in the celebrity's identity is largely a result of factors beyond their control,vii  (2) the right of publicity provides little or no incentive to achieve success,viii  and (3) celebrities already make enough money in their respective fields.ix

Continue reading here... 


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