Thursday, June 21, 2018

“The Right of Publicity?A Misunderstood, Misshapen, Bloated Monster”


If right of publicity/privacy is your thing, Jennifer Rothman, Professor of Law and the Joseph Scott Fellow at Loyola Law School, Los Angeles, has just penned a new book precisely on this topic, The Right of Publicity: Privacy Reimagined for a Public World (Harvard U. Press).

Here’s a snippet from the Volokh Conspiracy, where Rothman published five brief blog posts adapted from her book,

The right of publicity is a law that few people outside of Hollywood know much about. Nevertheless, it is an increasingly important right in our digital age even when celebrities are not involved. The right of publicity provides a right to control uses of your identity, particularly your name, likeness and voice, and to stop others from using those without permission. The boundaries of these state right of publicity laws vary widely from state to state, with some limiting the claims to uses in advertising or on products, and others allowing almost any claim when the use is for the defendant’s advantage. Some states limit claims only to those brought on behalf of the living, while others extend such rights after death.

In the book, I consider both the opportunities and risks that such right of publicity laws pose. I challenge the conventional, yet erroneous story of the right of publicity’s development, and by doing so I provide direction on how to avoid the right’s current dangerous path. The right of publicity in its current form jeopardizes the liberty of the very individuals that it is supposed to protect, while also interfering with free speech, and copyright law.

Here’s a link to Rothman’s Right of Publicity Roadmap; a great resource on right of publicity and privacy laws, state by state.


“I’m getting ready to sue three people today.”

But presumably this does not include “little old ladies.” How one copyright holder protects his photo of the Indianapolis skyline.

Brian Frye thinks, “Is there a better case for eliminating statutory damages & encouraging courts to consider awarding only nominal damages?


Frida Kahlo Corporation files lawsuit against Kahlo’s grandniece

In the U.S. District Court for Southern Florida.

Background here.


Performer sues alleging “her ‘sound, style, and aesthetic’” have been copied

The battle between Youtube personalities.


Man argues mixtape cover explicitly misrepresents him giving oral sex


Could you recognize someone based on a tattoo? Kevin Brophy Jr., surfer guy, alleges that rapper, Cardi B, has misappropriated his likeness and cast him in a “false light” because the rapper has created a mixtape cover that shows, presumably, a man giving her oral sex, and that man has a back tattoo identical to Brophy’s.

Add potential copyright preemption and jurisdictional issues to the right of publicity and right of privacy claims and you have the makings of a great law school exam (if, of course, the law prof provides a trigger warning).

Judge for yourself. And happy artlaw weekend!


Rethinking Artists’ Rights: Moral Rights


Christoph Büchel’s “Training Ground for Democracy” covered by Mass MoCA. Modification? Distortion? Derivative work?

I’m happy to be part of this artlaw series, Rethinking Artists’ Rights. In particular, I’ll be on a panel dealing with moral rights and the 1990 Visual Artists Rights Act.

From the Website:

Artists played a pivotal role in protests and government hearings on resale royalties, moral rights, and free speech during the 1960s-90s, but the legacy and relevance of that activism remains under-discussed. Since the destructive culture wars of thirty years ago, collaboration with law and policy makers has seemed fraught, leading us to question whether we should work with government or institutions, or build self-determined alternatives. Recent case law has produced an equally contested terrain, revealing ways in which artists’ rights issues can challenge cultural and legal norms of value, ownership, and free speech, while also demonstrating that the privilege granted to artistic expression can be manipulated towards conservative ends. In this time of heightened political involvement, how might the art community re-engage artists’ rights as a local politics? And how do we come to terms with the use of artists and artists’ rights in the larger context of ‘culture wars’ and anti-intellectualism deployed in the political field today?

This three-part round table series will bring together practitioners from art and law to unpack the legacies of artists’ rights statutes and cases, and imagine new ways forward.

Organized and facilitated by Lauren van Haaften-Schick, former Associate Director and fellow (’12) of the Art & Law Program and Kenneth Pietrobono, fellow (’16) the Art & Law Program.

Rethinking Artists’ Rights
Roundtable series at Pioneer Works
April 18 // May 15 // June 18 // 7-9pm
159 Pioneer Street, Brooklyn, NY

All events free and open to the public. If you attempt to register and are given a “sold out” reply, feel free to attend anyway. There will be plenty of seats!



Columbia MFA Visual Arts students demand tuition refund

51 of the 54 students in Columbia University’s Masters of Fine Arts Visual Arts Program have demanded a full tuition refund for the 2017-18 academic year, stating that they have not received the education that they were promised.

According to Columbia University’s Spectator,

Tuition for the 2017-18 academic year at Columbia was $63,961, compared to $36,359 for the Visual Arts programs at Yale. Columbia provides a limited amount of financial aid for students in the visual arts program, meaning that some students are more than $100,000 in debt by the end of the two-year program.


Clancco, Clancco: The Source for Art & Law,, and Art & Law are trademarks owned by Sergio Muñoz Sarmiento. The views expressed on this site are those of Sergio Muñoz Sarmiento and of the artists and writers who submit to They are not the views of any other organization, legal or otherwise. All content contained on or made available through is not intended to and does not constitute legal advice and no attorney-client relationship is formed, nor is anything submitted to treated as confidential.

Website Terms of Use, Privacy, and Applicable Law.

Switch to our mobile site