A request for a rehearing en banc of a claim for infringement of the common law right of publicity reversed on appeal. The right of publicity extends beyond the commercial use of a person s na m e and likeness, to any appropriation of a person s identity. The district court denied all the claims on summary judgment, but the common law claim was reversed on appeal. The right of publicity extends beyond the commercial use of a person s name and likeness, to any appropriation of a person s identity. Overprotecting intellectual property is as harmful as underprotecting it.
Creativity is impossible without a rich public domain.
The panel s opinion is a classic case of overprotection. Under the majority s opinion, it is now a tort for advertisers to remind the public of a celebrity. Every famous person now has an exclusive right to anything that reminds the viewer of her in a commercial contest, since the panel majority held that the California right of publicity can t possibly be limited to name and likeness. It impoverishes the public domain, to the detriment of future creators and the public at large. Celebrity persona has now become a property right.