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22 International Trademark Association, Board Resolutions Federal Right of Publicity, Mar. 78 much at all besides making rich celebrities richer, including talentless reality stars is debatable. In the domain name context, celebrity figures do not necessarily seek compensation, but rather the right “to prevent others from profiting from their name online.”38 Celebrity representatives (and yes, I was one, once upon a time) see things differently, defining the right of publicity in essence as protection “against other 30 Media reports indicate that initially, “Kardashian did not have a problem with the look-alike but Sears did.” See Timothy Mangan, Kim Kardashian’s Old Navy lawsuit thickens, OC REGISTER, July 25, 2011, 25/news/29817937. Greene, The Right of Publicity: Is the Rent “Too Damn High? The main character “was Ulala, a female reporter...outfitted with several different costumes…but primarily [wearing] a miniskirt, elbow-length gloves…knee-high platform boots...”82 Having viewed the game, and having come up listening to Dee-Lite, what struck me was the similarity between the Sega “Ulala” character and the dance moves of Lady Miss Kier. S., it asked Kirby for a license, which she refused to grant. As Professor Lessig notes, in the age of remix, where downloading and manipulating music, film and images is as easy as a mouse click, we will need new “moral platforms to sustain our kids.”93 We need look no further than the music industry to see the devastating effects of shifting “copynorms” arising from remix culture.

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28 David Tan, Affective Transfer and the Appropriation of Commercial Value: A Cultural Analysis of the Right of Publicity, 9 VIR. As Professors Ochoa and Welkowitz cogently demonstrate, publicity rights “create difficult problems for freedom of expression.”37 Whether it is J. Same for Electronic Arts use in a video game for a “muscular African American player wearing the number 32 on the All Browns team.”47 There is a rather 39 See Drake Bennett, Star Power: Celebrities have a legal right to prevent the commercial use of their images without permission. Similarly, Astrud Oliverira, who recorded under the name Astrud Gilberto, was upset when Frito-Lay used the iconic song, “The Girl from Ipanema” with a Miss Piggy voice-over in a commercial for potato chips. As Eric Farber notes, Lady Miss Kier “had a distinctive style…combining retro and futuristic looks with signature platform shoes, knee-socks, unitards, short pleated skirts…and sporting a bare midriff and backpack”.81 Her signature phrase in the hit song was a sexy “Ooh-la-la”. Cooper, Publicity Rights, False Endorsement, and the Effective Protection of Private Property, 33 HARV. The backlash to overreaching IP enforcement is one that IPR holders disregard at their peril, particularly in the on-rushing age of remix culture, as what is left of what used to be the music industry has learned.

Jennifer Lopez and Mark Anthony filed suit alleging appropriation of likeness against a baby carriage maker that used a photo of the formerly happy couple on its website to promote sales.33 “The Naked Cowboy,” that guy who sings in Time Square in his underwear, sued Mars Corporation, maker of M&M’s, for right of publicity appropriation because Mars depicted a blue cartoon M&M in drawers with a guitar in an advertisement.34 Less recent cases pit Tiger Woods against a painter for depicting Tiger’s image in a painting35, and my old client, Spike Lee, going after Viacom for its use of “Spike TV.”36 What bothers us in many of these cases is that the celebrity seems to be overreaching by claiming property in identity that causes neither economic harm nor harm to personality. 2003) (Woods lost the right of publicity suit on First Amendment grounds). Similarly, it is hard to feel sympathy for a company like Activison when it gets hauled into court for overreaching a contract and using avatars to manipulate songs from artists lik No Doubt46 or Maroon 5 lead singer Adam Levine beyond the scope of the license. The court dismissed her right of publicity claim, finding that it was preempted because Laws was in essence challenging the sound recording. Laws, has no rights to her voice or control over how it might be used in a composition. 77 See John Russell, The Kardashian Phenomenon- Talentless, Trashy Sisters take ‘Created Celebrity’ to New Heights, L. Kierin Kirby was better known as Lady Miss Kier, the singer with fabulous dance moves behind the hit song “Groove is in the Heart” by the 1990’s group Dee-Lite. “Copynorms,” Free Information and the Remix Culture Clash One of the negative effects of over-aggressive assertion of publicity rights is the creation of a general disrespect for IPRs in the community of consumers.

This essay focuses on the issue of performance rights—or lack thereof for artists generally and black artists in particular. Lemley, What the Right of Publicity Can Learn from Trademark Law, 58 Stan L. 1161 (2006); See also Michael Maddow, Private Ownership of Public Image: Popular Culture and Publicity Rights, 81 CAL L.

Like other Intellectual Property Rights (“IPR”), the right of publicity has the potential to shrink both the public domain and the marketplace of ideas, thus preventing the dissemination of informational and creative works.

It is standard practice when writing an article about the right of publicity to note the intense criticism the right engenders in the academic literature. Greene, Copyright Culture and Black Music: A Legacy of Unequal Protection, 21 HAST.

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