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Media Law Prof Blog
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The Right of Publicity and Free Speech

By Media Law Prof Blog
Mark A. Conrad, Fordham University School of Business, has published “The Right of Publicity in the Digital Age: Doctrinal Tensions, Common Law Theories and Proposals for Solutions, in volume 24 of The Computer Law and Security Report (2008). Here is the abstract.

In the fall of 2007, a Federal appeals court ruled that the use of the names and records of Major League Baseball players without license or permission by an Internet fantasy sports website was protected speech and trumped the property rights of the players. The ruling in by the U.S. Court of Appeals for the Eighth Circuit in CBC v. MLBAM marks the latest skirmish in the long-simmering tension between the scope of the so-called “Right of Publicity” and the First Amendment’s guarantee of free speech. This issue of where free speech ends and proprietary protection begins is the subject of a long line of cases – with conflicting rulings, different doctrinal approaches and a haphazard state-by-state approach. With the evolution of the Internet as a marketing and commerce tool, the economic implications of digital rights have increased the problem.

The paper would track the development of the right of publicity tort, discuss the leading cases and propose solutions.

Download the paper from SSRN here.