In this essay, I will sketch out the impact of right of publicity law on black cultural production. More concretely, I will consider the implications of publicity law for black artists, and what help, if any, publicity rights offer to the problem of under protection of performance rights. The right of publicity protects against unauthorized appropriation of a person’s name, likeness, portrait, picture, voice and other indicia of identity or persona. This essay focuses on the issue of performance rights, or lack thereof, for artists generally and black artists in particular. Like other Intellectual Property Rights (IPR), the right of publicity has the potential to shrink both the public domain and the marketplace of ideas, thus preventing the dissemination of informational and creative works.9 Standard practice when writing an article about the right of publicity is to note the intense criticism the right engenders in the academic literature. Not wishing to miss “the fun,” this is my third article on publicity rights—after vowing publicly never to write in the area. As is common among IP scholars, I argued elsewhere that IPRs have expanded, and targeted the right of publicity for particularly harsh treatment.
Right of Publicity, Identity, and Performance,
28 Santa Clara High Tech. L.J. 865
Available at: http://digitalcommons.law.scu.edu/chtlj/vol28/iss4/4