This article proposes applying genericide to the right of publicity as a way to cabin the over-expansion of publicity rights. The article offers a different approach than previous proposals, which seek to either narrow the definition of publicity rights or bolster defenses, such as the First Amendment. Like trademark genericide, the celebrity's image comes to refer to an idea, not to the identity of the source of the product or to the identity of the celebrity. This article proposes a test: whether the aspect of the celebrity's persona at issue has been used in the public dialogue with a clearly separate meaning over a long period of time. This test is designed to determine when the primary significance to the public of the celebrity's image is no longer the celebrity's personal identity. Genericide would enhance free speech by putting cultural icons fully in the public domain. At the same time, this article argues that celebrities would not substantially lose the right to control use of their identities because, at the point at which a celebrity's image would be subject to genericide, the public has already appropriated the image and imbued it with a new meaning.
Applying Genericide to the Right of Publicity,
10 Vanderbilt Journal of Entertainment and Technology Law
Available at: https://scholarship.law.vanderbilt.edu/jetlaw/vol10/iss2/2