Spring Semester 2013
Discussion Questions for pages 116-130
1. Consider the Bette Midler example discussed on page 116. For what reasons, if any, should the law protect Midler’s expectation that she should be able to “control” her identity and its celebrity value as a property right? What reasons might justify recognizing a property right in someone's identity?
2. Facebook has a “Sponsored Stories” advertising program. The service shows a user a name, profile picture, and a statement that one of their Facebook friends "likes" a company. If Facebook uses my picture in this advertising program and does not pay me, have they violated my right of publicity? Why or why not?
3. In conjunction with the Saderup case and the limits of the right of publicity, consider the following questions:
a. How would you explain the legal standard that the court fashions to express how the first amendment limits the right of publicity? Does this seem like a good balance? Why or why not?
b. Suppose that Saderup had done the same drawing of the Three Stooges, but the drawing was against the backdrop of a mountain with the caption "Comedy's Mt. Rushmore," so that the faces appear to be carved out of the mountain. Would the case be decided the same way, or would Saderup's conduct be protected by the first amendment?
c. Consider examples (a) through (f) in note 1, pages 128-130. In which of these cases do you think the plaintiff would have a viable right of publicity claim? In which of these cases do you think the defendant would have a legitimate first amendment defense, based upon the standard expressed in Saderup?