The first Part of this Article charts a brief course through the history of the right of publicity and the First Amendment. The second Part studies the competing economic rights, their philosophical justifications, and their shortcomings. The third Part analyzes several major cases that dealt with the conflict of rights, criticizing the transformative use analysis as a proxy for economic value and explaining the shortfalls of the test. The fourth Part proposes a new theory of add-on value and a paid-for First Amendment.
The issue we identify is that a loosely defined doctrine of concurrent ownership (of the celebrity image) is being applied to an abstract and infinite resource, thus apportioning the plaintiffs right to use her property against the defendant's identical right to use that property-and all using a very odd and ill-fitted tool: the First Amendment. It is a very poor device to do the job it is asked to do. We argue here that the problem cannot be fixed until the deficiency in First Amendment jurisprudence is identified: it is not designed and does not work well as a value allocation device. We further argue that the proper conceptualization of the conflict is one of shared value and proper compensation if we are to allow celebrity fame to be utilized by multiple parties besides the celebrity.
49 Wake Forest L. Rev. 977 (2014).