Unmasking the Right of Publicity

In the landmark 1953 case of Haelan Laboratories v. Topps Chewing Gum, Judge Jerome Frank first articulated the modern right of publicity—a transferable intellectual property right. The right has since been seen to protect the commercial value of one’s “persona”—the Latin-derived word meaning the mask of an actor. Among other frequent criticisms, the right of publicity is accused of lacking a coherent justification, permitting only economic redress against public harms to the persona, and stripping away individual identity by allowing for a proprietary right in one’s personality. Why might Judge Frank have been motivated to fashion a transferable right in the monetary value of one’s public persona distinct from the psychic harm to feelings, emotions, and dignity rooted in the individual and protected under the rubric of privacy? Judge Frank was a leading figure in the American legal realist movement known for his unique and controversial “psychoanalysis of certain legal positions” through influential books including Law and the Modern Mind and Courts on Trial. His work drew heavily on the ideas of psychoanalytic thinkers, like Sigmund Freud and Carl Jung, to describe the distorting effects of unconscious wishes and fantasies on the decision-making process of legal actors and judges. For Judge Frank, the psychoanalytic interplay between public and private aspects of the personality supported his realist interpretation of lawmaking as a subjective and indeterminate activity. Indeed, though Frank provided little rationale for articulating a personality right separate from privacy in Haelan, he had given a tremendous amount of attention to the personality in his scholarly works. This Article suggests that the modern right of publicity’s aim, as perhaps intended by Judge Frank in considering his psychoanalytic jurisprudence, may be usefully understood through the psychoanalytic conception of the personality—one divided into public and private subparts. In the psychoanalytic sense, the term persona, or “false self,” is used to indicate the public face of an individual, i.e., the image one presents to others for social or economic advantage, as contrasted with their feelings, emotions and subjective interpretations of reality anchored in their private shadow, or “true self.” Yet, the law’s continued reliance on this dualistic metaphor of the personality appears misguided, particularly as technology, internet, and new media increasingly blur the traditional distinctions between public and private. The Article thus concludes by examining intersubjective personality theory. Intersubjectivity could provide publicity law with a useful conceptual update given its view of the self and personality as a relational, contextual, and social construct, rather than a public-private dichotomy.