Toward a Theory of the Right of Publicity (Part 1)

Abstract

The first part of the article examines the theoretical and statutory foundations of the right of publicity in the American legal tradition. The author explains why the institution of personality rights in Russia needs to be reconsidered in the context of the commercialization of identity and draws on the experience of the United States, where a dichotomy has developed between the right to privacy (negative prohibitions and protection of the inner sphere) and the right of publicity (positive entitlements to control the commercial use of a person’s likeness, voice, name, and other identifiers). The article traces the genesis of the right of publicity and the subsequent wave of its codification by individual states. California law is analyzed in detail with respect to both living persons (an inalienable right and protection against misappropriation) and deceased persons (a heritable property right with a 70-year term, including recent amendments concerning the digital replication of voice and likeness). Special attention is paid to doctrinal approaches: the proposal to divide the unitary right of publicity into three independent causes of action, criticism of that proposal from the perspective of the labor theory of value, and a competition-law analysis. The author concludes that American regulation is fragmented but gradually becoming more harmonized, creating the conditions for further study and comparison with Russian law in Part Two.