A Perspective on Human Dignity, the First Amendment, and the Right of Publicity

Abstract

The right of publicity is a legal theory that enables individuals to protect themselves from unauthorized, commercial appropriations of their personas. Allowing the unauthorized use of an individual’s persona potentially poses the maximum harm when the persona is being appropriated in an objectionable context or for an objectionable purpose. In these instances, neither an award of injunctive relief nor monetary damages will erase the damage to the persona. These are situations involving dignity, as opposed to economic, harms. Much ink has been spilled over the intersection between the right of publicity and the First Amendment generally. To date, however, neither courts nor commentators have focused specifically on how the existence of dignity harms should impact the analysis in these cases. This Article attempts to open a dialogue on this point.