This Article explores the nature and developing boundaries of the state law doctrine of the right of publicity. It investigates the doctrine's conflict with the 1976 Copyright Act and federal policy concerning intellectual property, and concludes that the 1976 Act precludes publicity actions aimed at protecting certain types of publicity interests. In other situations, the overriding objectives of federal copyright policy preempt the right to the extent that the right defined as perpetual; moreover, such protection in perpetuity violates the supremacy clause of the Federal Constitution. Many types of publicity actions, however, should escape preemption either because the asserted rights and interests are outside the scope of the 1976 Act or because the protection of the particular rights and interests at stake comports with general federal policy. To provide certainty regarding the publicity doctrine's scope and continued vitality, courts must construe state law publicity rights in the context of the current federal copyright law.
David E. Shipley,
Publicity Never Dies; It Just Fades Away: The Right of Publicity and Federal Preemption
Available at: http://digitalcommons.law.uga.edu/fac_artchop/269