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Publicity Rights and Image : Exploitation and Legal Control - Gillian Black

Publicity Rights and Image

Exploitation and Legal Control

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Academics and practitioners are currently divided on the issues involved in permitting and regulating the commercial exploitation of publicity. 'Publicity' is the practice of using an individual's name, image and reputation to promote products or to provide media coverage, often in gossip magazines and the tabloid press. This book provides a theoretical and multi-jurisdictional review of the nature of publicity practice and its appropriate legal regulation. The book includes a detailed exploration of the justifications advanced in favour of publicity rights and those that are advanced against. Removing the analysis from any one jurisdiction the book examines current academic and judicial perspectives on publicity rights in a range of jurisdictions, drawing out similarities and differences, and revealing a picture of current thinking and practice which is intellectually incoherent. By then clearly defining the practice of publicity and examining justifications for and against, the author is able to bring the nature and shape of the right of publicity into much sharper focus.

The book includes a careful consideration of possible limits to any right of publicity, the potential for assigning publicity rights or transferring them post mortem, and whether defences can be offered. The author concludes by arguing for a publicity right which provides a degree of protection for the individual but which is significantly curtailed to recognise valid competing interests.

This is a work which will be of interest to academics and practitioners working in the field of publicity, privacy and intellectual property.

This is a very welcome and highly readable addition to the literature. It deserves a broad readership in Europe and in the spiritual home of the right of publicity - the United States - and will leave readers wishing to delve deeper into the literature of this fascinating subject. Hart Publishing should also be commended for producing one of the most attractive books of 2011. It is sensibly priced, which should make it accessible to the wide audience it deserves and not the exclusive preserve of well-funded libraries or micro-celebrities flush with the proceeds of their latest photo spread. -- Huw Beverley-Smith * European Intellectual Property Review Volume 34, Issue 6, 2012 *
Publicity Rights and Image condenses a complicated area of law into an easy-to-understand primer and presents a strong argument that the topic needs further attention from scholars and policy makers ... Supplementing its cogent analysis, the book includes comprehensive tables of cases and legislation, an extensive bibliography, and a detailed index with strong coverage of alternative terms. Black ... has made a valuable contribution to the study of publicity law and rights [and her book] is recommended for selection by all academic law libraries and by law firm libraries supporting attorneys who practice in the area. -- Deborah Schander * Law Library Journal Volume 104: 1 *
Black's book is a welcome addition to the literature in the field for she considers complex and difficult questions about privacy and publicity and brings to her task an obvious commitment to exacting analysis. Whatever materialises on the legislative front, this book will prove to be an invaluable reference for academics and practitioners alike as the controversy surrounding "market rhetoric" and personality is unlikely to abate any time soon. Black provides a compelling argument in favour of a publicity right, explaining how dignitarian and economic interests can be reconciled in this particular instance. -- Patrick O'Callaghan * Edinburgh Law Review Volume 16, 2012 *
...a useful source for both students and practitioners of information about the development of this fledgling right. As usual with Hart the book is well presented and reasonably priced in these austere times. -- Howard Johnson * Communications Law 2011 *
...this work is a valuable one, which deserves to be carefully read and appreciated. The efforts spent in realizing a precise and methodologically coherent review of the theory behind publicity rights have produced a contribution which is thought-provoking, as well as innovative in its attempt to provide inputs and suggestions which are not bound to any specific jurisdiction. -- Eleonora Rosati * Journal of Intellectual Property and Practice Volume 6, Issue 9 *
[Black's] conclusions are the product of meticulous review and analysis of relevant court decisions, statutes, and academic studies, ranging through the sometimes confusing and contradictory legal systems that constitute Western jurisdictions. For every conclusion that she draws, Black first provides ample opportunities for both judicial and academic proponents of contrary views to be heard before proceedings to offer solid, persuasive arguments for her own positions. -- Philip A. Dynia * The Law and Politics Book Review The Law and Politics *

Acknowledgementsp. vii
A Note on URLsp. viii
A Note on Case Citationsp. viii
List of Journal Abbreviationsp. xiii
Table of Casesp. xv
Table of Legislationp. xix
The Power of Image: Introducing Publicity Rightsp. 1
Introductionp. 1
Tracing the Development of Publicity Practicep. 2
The Scope of this Projectp. 5
Understanding Publicity: Theory and Practicep. 9
The Theory of Image and Publicity Rightsp. 11
The Legal Landscapep. 11
The 'Publicity as Property' Approachp. 12
Publicity as a Subset of Personality Rightsp. 16
Appropriation of Personalityp. 19
Appropriation of Personalityp. 19
Character Merchandisingp. 22
A Fourth Way: Privacy and Publicityp. 25
Cross-Overs and Conclusionsp. 27
The Exploitation of Image and Publicityp. 30
Introductionp. 30
The Dual Classification Part 1: The Use Approachp. 32
Examining Publicity Usesp. 32
The Tripartite Classification of Usesp. 35
The Paradigm Publicity Use Casesp. 39
Authorised and Unauthorised Usep. 42
The Dual Classification Part 2: The Subject Matter Approachp. 44
Identifying the Subject Matterp. 44
The Underlying Element: Reputationp. 48
Analysis of Contracts for Publicity Exploitationp. 53
Conclusionp. 58
Privacy as a Basis for Protecting Publicity Rightsp. 60
Introductionp. 60
The Right to Privacy in the UKp. 61
Introductionp. 61
Breach of Confidencep. 63
A Reasonable Expectation of Privacyp. 64
Freedom of Expressionp. 69
Summaryp. 71
Publicity as a Privacy Rightp. 72
Introductionp. 72
The Need for a Confidential Relationship or a Reasonable Expectation of Privacyp. 73
Private Information: Invasion versus Disseminationp. 73
Defences to Privacy Infringementsp. 75
Positive Exploitationp. 76
Waiving the Right to Privacyp. 76
Exploiting Publicity by Licensing a Privacy Right: Douglas v Hello!p. 78
Conclusionp. 81
Justifying Publicity Rightsp. 83
Justifying Publicity Rights: Setting the Scenep. 85
Introductionp. 85
Benefits and Harms: Identifying the Interests at Stakep. 87
The Dual Interests in Publicity Literaturep. 88
The Dual Interests in Publicity Practicep. 92
The Economic and Dignitarian Interests in Other Areas of Lawp. 94
Dignitarian and Economic Interests: Mutually Exclusive or Mutually Compatible?p. 95
Accepting Three Rebuttals of Publicity Rightsp. 96
Order, Autonomy and Efficiency: Justifying a Right of Publicityp. 102
Advancing Justifications for Publicity Rightsp. 102
Ordering the Chaosp. 103
The Dignitarian Rationale for Publicityp. 107
Autonomy and Dignityp. 107
The Significance of Image for Autonomyp. 109
Autonomy and Dignity in the Context of Publicityp. 110
Denial of Autonomy and Dignity in Publicityp. 112
Autonomy and Dignity in the Economic Interestp. 116
Waiver of Autonomy and Dignity in Persona?p. 117
Summaryp. 118
The Economic Rationale for Publicityp. 119
Economic Efficiencyp. 119
Identifying the Social Assetp. 120
Over-Consumption of Persona Leading to Tragedy?p. 121
Allowing Net Positive Externalitiesp. 124
Maximising Efficiency through a Balance of Rightsp. 125
Summaryp. 126
Two Further Objections Consideredp. 127
The Argument from Free-Ridingp. 127
The Argument from Wealth Distributionp. 129
The Alternative Questionp. 131
Conclusionp. 133
The Competing Interestsp. 134
Introductionp. 134
Freedom of Expressionp. 134
Creative and Communicative Usep. 138
Conclusionp. 141
The Nature of Publicity Rightsp. 142
Introductionp. 142
Identifying the Individualp. 142
Inalienability and the Property Status of Publicityp. 145
Publicity as a Monopolyp. 147
The Likelihood of Legislationp. 150
Conclusionp. 151
Shaping Publicity Rightsp. 153
The Scope of Publicity Rights: Formation, Duration and Transferp. 155
Introductionp. 155
Formalitiesp. 156
Labour or Creativityp. 156
Registrationp. 157
Durationp. 160
Introductionp. 160
Duration in Lifep. 161
Post Mortem Durationp. 162
Transmission and Transferabilityp. 167
Transfer of the Right in Life: Assignation and Licensingp. 168
Transmission of the Right Post Mortemp. 170
The Permitted Uses of Personap. 171
Introductionp. 171
Private Usep. 171
Freedom of Expressionp. 171
Public Policyp. 172
Public Interestp. 173
Fair Dealingp. 177
Parodyp. 178
Other Possible Permitted Usesp. 180
Remedies for Breach of Publicity Rightsp. 182
Introductionp. 182
Preventing Unauthorised Usep. 182
Redressing Unauthorised Use: Damagesp. 184
introductionp. 184
The Notional Licence Feep. 185
Additional Damagesp. 190
Account of Profitsp. 190
The Calculation of the Awardp. 191
Windfallsp. 192
Other Disposalsp. 193
Remedies for Authorised Usersp. 194
Conclusionp. 196
Appendixp. 199
Bibliographyp. 200
Indexp. 215
Table of Contents provided by Ingram. All Rights Reserved.

ISBN: 9781849460545
ISBN-10: 184946054X
Audience: BAC
Format: Hardcover
Language: English
Number Of Pages: 244
Published: 29th January 2011
Country of Publication: GB
Dimensions (cm): 24.77 x 17.15  x 1.91
Weight (kg): 0.54
Edition Number: 1