This Note will argue that, given the variation in the right of publicity from state to state, and the relative newness of this property right, Congress should refrain from passing a law to federalize it. Although there are sound arguments for adopting this right, there are also reasons to hesitate. Given that only half of the states have adopted it, federalization seems premature. This Note will only obliquely address the main objection usually leveled at a robust right of publicity, namely that it stifles creativity and implicates First Amendment concerns. The focus instead will be on the right of individual states to choose not to create this property right within their borders, and the workability of a state-based system where rights of publicity are not uniform.
Race to the Stars: A Federalism Argument for Leaving the Right of Publicity in the Hands of the States
Available at: http://digitalcommons.law.uga.edu/fac_artchop/381