英文摘要 |
The Right of publicity was born of common law privacy rights and flourished under property law analysis. When a person reaches a level of popularity that inherently creates economic value in the use of their name and likeness, that person is entitled to the exclusive control of such use. Known as the right of publicity, this entitlement essentially allows every person to exclude others from using their identity as a means for acquiring economic gain. Though it has many important uses, one unfortunate consequence of the right of publicity is that it restricts artists' abilities to portray real persons in their works. In so doing, the right of publicity directly conflicts with the First Amendment protections of an individual's freedom of expression. The constitutional command embodied in the First Amendment safeguards freedom of expression in our society. On the other hand, right of publicity jurisprudence recognizes the property right that stems from the value of an individual's persona. Where to draw the line is often a difficult determination for the court. As courts and legislatures developed the right of publicity over the past decades, changes in technology have provided for considerations concerning how the right should be interpreted. Courts have constantly maintained that the right of publicity must be balanced with First Amendment concerns. The balance between a man or woman's economic value being exploited against the commercial expression of a work has left litigants confused. With various tests being used in the judiciary and different levels of common law and statutory protection throughout the country, it is time that the Supreme Court gets "in the game.". This thesis also analyize these various tests, and recommend transformative test to learn. |