Dr. Thomas Marx Award 2008

Dr. Thomas Marx Award 2008

WINNER OF THE DR. THOMAS MARX AWARD 2008:

Jeffrey A. Lindenbaum, Collen IP

WINNER:

Summary:

Fifteen Minutes of Fame Can Generate Fifteen Decades of Royalties: An International
Comparative Analysis of Right of Publicity and Trademark Laws that Create a Monopoly of
Economic Benefits Deriving from an Individual’s Name, Image and Likeness
Whether an individual is entitled to claim rights to a separate economic property interest
in his name, image and likeness has been the subject of increasing legal debate. A relatively
recent body of jurisprudence, a “right of publicity” was first recognized in the United States, and
has since been adjudicated by nations throughout the world. Revenues created from enforcing
and licensing such rights generates millions of dollars annually. Given recent technology, the
challenges of protecting these rights continue to grow. Today, an individual’s image and
likeness can be instantaneously broadcasted throughout the world by anyone who owns a
computer. As satellite broadcasts and internet sites such as YouTube are not restricted by
national borders, an international understanding of these rights is vital.
This paper analyzes the rapidly evolving right of publicity laws in the United States, and
offers a novel comparison of some of the similarities and differences with how these rights are
recognized or rejected in Germany, the United Kingdom and Australia. The ideological issues
inherent in protecting, as an economic right, one’s name, image and likeness is examined.
Particular attention is paid to the highly contested extension of these rights to individuals, postmortem. Post-mortem rights have been widely accepted by several governing bodies, and
staunchly opposed by others. This paper studies how new legislation and court decisions from
this past year have done little to offer uniform guidance, and to the contrary, have served to only
fuel more controversy.
The second half of the paper presents an original view of how trademark law in the
United States, as well as Germany, the United Kingdom and Australia has served as a means for
either acquiring otherwise non-existent rights in a name, image or likeness, or to compliment and
expand such rights. The research reveals that trademark law may be effective in overcoming
certain recognized hurdles of right of publicity laws, particularly term limitations and restrictions
on transfer. However, as ultimately concluded in the paper, the fundamental principles of
trademark law, most notably that a trademark must serve the function of identifying source, will
undoubtedly limit the ultimate impact trademarks will serve as a means of protecting an
individual’s right to the exclusive exploitation of their name, image and likeness. The paper
ultimately postulates that until the right of publicity secures additional international recognition
and uniformity, parties will


Paper:

Fifteen Minutes of Fame Can Generate Fifteen Decades of Royalties: An International Comparative Analysis of Right of Publicity and Trademark Laws that Create a Monopoly of Economic Benefits Deriving from an Individual’s Name, Image and Likeness