The Right of Publicity Versus Free Speech in Advertising: Some Counter-Points to Professor McCarthy

Professor J. Thomas McCarthy, in a recently published lecture, has defended recent expansions of the right of publicity and rejected the idea of a free-speech defense that would in some cases protect the unlicensed use of a celebrity's name, likeness, or "identity" in an advertisement. In this "counter-lecture" Professor Barnett focuses on what he sees as the growing conflict between the right of publicity, as embodied in Ninth Circuit decisions such as the Vanna White and Abdul-Jabbar cases and in the Restatement (Third) of Unfair Competition, and free speech in advertising, as protected by the Supreme Court's doctrine of "commercial speech." Professor Barnett argues that the right of publicity in its recent expansions may violate First Amendment prohibitions against vagueness and undue breadth, and that the Supreme Court's test for restrictions on commercial speech should lead to recognition of a "fair use" defense to right-of-publicity claims. The author concludes by considering two possible applications of such a defense-to an ad using sports statistics, as in Abdul-Jabbar, and to one that is a parody or spoof of popular culture, as in White.