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Drawing Trump Naked: Curbing the Right of Publicity to Protect Public Discourse
Get PDFFrom Donald Trump to Lindsay Lohan to Manuel Noriega, real people who are portrayed in expressive works are increasingly targeting creators of those works for allegedly violating their “right of publicity”—a state-law tort that prohibits the unauthorized use of a person’s name, likeness, and other identifying characteristics. Intuitively, we might feel confident that Mark Zuckerberg should not be able to block his portrayal in The Social Network movie, that Marilyn Monroe could not have stopped Andy Warhol from exhibiting his vibrant paintings, that O.J. Simpson could not have demanded money from FX to air the American Crime Story docudrama. But what supports these intuitions? And should we be so confident?
This Article provides a new framework to reconcile publicity rights with a robust commitment to free speech under the First Amendment. After describing the current landscape in the courts, this Article scrutinizes the “educative” First Amendment theory that has motivated many of the past decisions confronting the right of publicity—a listener-focused theory that relies on the public’s right to receive information. This Article then reframes the doctrine in a new way: as four distinct educative defenses that have developed to assuage concerns about publicity rights interfering with speech on matters of public concern. These four defenses might seem encouraging to those who worry that publicity rights impair expressive rights. But all too often they have instead complicated and undermined the opposition to publicity rights and, as a result, they pose an unexpected and underestimated threat to free speech. To combat this threat, this Article recalibrates First Amendment theory as it relates to the right of publicity.
To adequately protect creators and their expressive works, this Article argues that we must abandon educative models of the First Amendment and instead adopt an approach that also protects the speaker as a central part of enabling public discourse. Failure to adopt this speaker-focused theory in publicity doctrine will perpetuate confusion in the courts and state legislatures, an outcome that will have a chilling effect on creators who seek to portray real people in their work. Yet we must also recognize the interests that publicity rights can serve. As we move into an era of new technology and innovation—from “deep fakes” to nonconsensual pornography—this challenge will only intensify. To address it, courts should refer to the constitutional concept of “public discourse” when publicity rights face off against expressive rights—a concept that not only empowers free expression, but also considers the narrow interests that we should all have in preventing certain uses of our images
Still Standing, Barely: Bank of America Corp. v. City of Miami and the Impact on Fair Lending Litigation
Get PDFOnline Terms as In Terrorem Devices
Get PDFOnline shopping has quickly replaced the brick-and-mortar experience for a large portion of the consuming public. The online transaction itself is rote: browse items, add them to your cart, and check out. Somewhere along the way, the consumer is likely made aware of (or at least exposed to) the merchant’s terms and conditions, via either a link or a pop-up box. Such terms and conditions have become so ubiquitous that most consumers would be hard-pressed to find a merchant that doesn’t try to impose them somewhere on their website. Though such terms and conditions are pervasive, most consumers do not bother to read them before checking out. Consumers might be surprised by what they would find if they did read the terms and conditions, as many retailers include clauses limiting liability, disclaiming warranties as well as choice of law, forum selection, arbitration, jury waiver, and class action waiver clauses. Many of these clauses are grounded in a practical concern over limiting liability and lowering transaction costs. However, the fact that retailers do not include such clauses as part of their in-store transactions raises the question of whether the retailers are actually concerned with binding consumers to such terms. The apparent lack of importance of these terms is further highlighted by the fact that most retailers use “browsewrap” terms and conditions to bind their customers, despite browsewrap being one of the least effective methods of making consumers aware of the terms. While these terms and conditions may provide some utility to the companies attempting to impose them, the main benefit may in fact be their in terrorem effect. This is especially true in instances where companies have failed to adequately notify their consumers about the terms’ existence. This Article will examine the various methods that are used in online contracting to bind consumers and consider the enforceability of the most common terms. The Article will conclude that the primary incentive sellers have to include such terms on their websites is their in terrorem effect. Though the use of online terms and conditions as in terrorem devices may be appealing economically, the use of browsewrap as the primary notification device ex ante presents moral and ethical issues
