Abstract
The 1970s were a period of rapid change. Personal computers were conceived, Walt Disney World opened to the public, the first magnetic resonance imaging (MRI) scan was published, Elvis Presley performed the first worldwide concert broadcast live by satellite, and your only child was born. Your son was born with hemophilia, a disease that prevents his blood from clotting. He required regular infusions, one of which gave him acquired immunodeficiency syndrome (AIDS). His peers and his community immediately shunned him. You helped him fight fear-based discrimination in your community and in the world. Together, you made an impactful difference, but he was still taken from you too soon. After his death, you discovered a company using his image to sell products for its own benefit. As if losing your only child was not enough, despair filled your heart and mind again. Your son was not a celebrity, and he was not born into a wealthy family. Does the law provide a solution to preserve your child’s legacy and limit commercial uses of his name, image, and likeness? This Note addresses that question.
Utilizing normative reasoning as a tool, this Note argues for the enactment of a federal publicity statute. Of the few scholarly articles that have conducted an economic analysis of publicity rights, none to the Author’s knowledge have advocated for publicity rights belonging to the average individual, presumably due to the belief that only celebrities possess “unequivocal identifying” features of commercial value. While some empirical data may have supported that belief in the past, that is certainly not the case today. Every individual’s right of publicity has commercial value in the “machine learning age,” and some of the first cases addressing the unauthorized commercial use of an individual’s likeness recognized greater protection for non-famous individuals than for celebrities. Yet today, publicity rights are misidentified as property belonging exclusively to celebrities. Due to this misconception, this Note emphasizes the protection of non-famous individuals’ publicity rights.
This Note provides value to the legal community by being limited in scope. This narrow focus disallows discussion of interesting topics within the intersection of economic analysis of law and publicity rights that do not assist in solving the question this Note poses. For example, wealth distribution is intrinsically intertwined with social welfare, but it is excluded from discussion within this Note because wealth distribution is best addressed by taxation principles. Additionally, the intersection of publicity rights and the First Amendment does not directly relate to the purpose of this Note. This Note also does not question whether the right of publicity is a property right—that question has been asked and answered long ago. The aim of this Note is to answer whether a federal publicity statute protecting famous and non-famous individuals’ right to control the commercial use of their unequivocal identifying features optimizes social welfare. A positive economic analysis coupled with normative reasoning of tradeoffs in transactions involving publicity rights answers this question in the affirmative. A federal publicity statute optimizes social welfare and serves as the best policy for society.
Recommended Citation
Alyssa J. Devine,
Economic Analysis of Publicity Rights in the Machine Learning Age: The Need for a Federal Statute Protecting the Non-Famous,
5 Fla. Ent. & Sports L. Rev.
151
(2026).
Available at: https://scholarship.law.ufl.edu/feslr/vol5/iss2/5