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eBook details

• Title: Publicity Rights, False Endorsement, And the Effective Protection of Private Property.
• Author : Harvard Journal of Law & Public Policy
• Release Date : January 22, 2010
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 296 KB

Description

INTRODUCTION Publicity rights, though lacking a physical manifestation, are of high social benefit. These rights protect the commercial value in an individual's name. As with other forms of property rights, the state should enforce them vigorously and effectively. In theory, these rights are currently protected, an implicit recognition of their value. In practice, however, two concerns are emerging: the devaluation of wealthier individuals' claims for protection and the use of an overly complex test that fails to provide adequate predictability or expedience. Indeed, the intellectual property protected by publicity rights--essentially the right to exploit a well-known reputation commercially--is particularly fragile because its value, though real and substantial, is embedded in public perceptions and can be easily damaged by undesired associations. (1) This Note proposes a revision of the publicity rights test and suggests that courts import the "Endorsement Test" from First Amendment doctrine to remedy these two issues while operating within the familiar framework of its existing jurisprudence. Guided by the rationale for the right, as demonstrated by its theoretical justifications, false endorsement claims should be evaluated under the following standard: In light of the context, would it appear to a reasonable observer that the disputed message constitutes an endorsement?

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