"Private Ownership of Public Image: Popular Culture and Publicity Rights"
81 Calif. L. Rev. 125 (1993)
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I. PUBLICITY RIGHTS AND THE POPULAR CULTURE DEBATE
They're talking dollars. As Jack Benny would say, dollars.
-- New York State Senator Emanuel Gold, referring to proponents of a proposed publicity rights law. n31
Contemporary proponents of the right of publicity have, in the main,
exhibited surprisingly little interest in the basic question of justification.n32
The predominant tone in both the case law and the academic writing in this
regard is impatient, even at times bullying -- as if only a fool or a prig
would insist on an elaborate or arduous demonstration. Some seem content
to rest upon an unanalyzed intuitive sense that a celebrity's persona simply
is her "property," that if there is a
"natural right" to any property, then this must surely be it. In a similar vein, Professor McCarthy, the author of the standard treatise on the subject, characterizes the right of publicity as "a self-evident legal right, needing little intellectual rationalization to justify its existence."n33 That celebrities should have exclusive control of the commercial use of their identities, McCarthy says, is simply "commonsensical."n34 "[O]ne wonders what all the fuss is about."n35
The nonchalance of this appeal to "common sense" is rather astonishing. "Common sense," after all, is not a faculty by which we can learn how matters are, much less how they should be. All we can learn through common sense, as Stuart Hall reminds us, is where something fits into "the existing scheme of things."n36 What appears to be "common sense" may be nothing but the particular view of a matter that most strongly supports and expresses the interests of powerful social groups, or that fits most snugly with other deeply rooted and unexamined beliefs.n37
That aside, there are good reasons to demand a full and persuasive justification
for publicity rights. The first is the fact that the right of [*137] publicity
redistributes wealth upwards. Whether or not the "principal danger to a
just society today" is, as Richard Delgado tentatively suggests, the "purposeful
enrichment" by the government of those "at the top,"n38 governmental actions
that make the rich richer surely demand very compelling justification.
Why, we may properly ask,
should the law confer a source of additional wealth on athletes and entertainers who are already very handsomely compensated for the primary activities to which they owe their fame?n39 The actor Arnold Schwarzenegger, for example, reportedly collected $ 10 million for his role in the movie Total Recall.n40 Ryne Sandberg recently signed a multiyear contract with the Chicago Cubs that pays him an average annual salary of $ 7.1 million.n41 Is that not enough, or even
too much? Why should the law give entertainers and athletes a legal right that funnels still more money their way? Why not instead treat a famous person's name and face "as a common asset to be shared, an economic opportunity available in the free market system"?n42 There may well be a satisfactory answer to these questions, but if so, its name is certainly not "common sense."
But that is not all. There is still another -- and, to my mind, far
[*138] more important -- reason why an appeal to "common sense" will not
suffice here: publicity rights facilitate private censorship of popular
culture. In order to see how this is so, and to appreciate why it is cause
for serious concern, we need first to place the "right of publicity" issue
in the context of a wider academic debate about the nature and distribution
of cultural power in contemporary American
society. Only then will we be in a position to see why "we're talking" much more than "dollars" here.
Since the early part of this century, when the entertainment industries emerged as large-scale capitalist enterprises, cultural power -- the power to make and circulate meanings, values, and symbolic forms -- has been steadily commercialized and centralized.n43 Popular culture is no longer, if it ever was, "a spontaneous, autochthonous expression of the people,"n44 shaped out of their own material and discursive resources to suit their own needs and interests. The ominance of global entertainment and media conglomerates has instead made popular cultural practice predominantly a matter of consumption.n45 These developments have generated a lively and fascinating contemporary debate between "cultural pessimists" and "cultural populists" about the nature and distribution of cultural power in contemporary society.n46
"Cultural pessimists," who owe much to the seminal work of the Frankfurt School theorists, n47 see mass-mediated popular culture as a field in which dominant, repressive (in other words, consumerist, patriarchal, [*139] etc.) meanings are systematically reproduced and reinforced.n48 In their view, commodities produced and distributed by the culture industries dissolve, or at least conceal, social difference and conflict. "Cultural populists,"* in contrast, generally view popular culture as contested terrain in which individuals and groups (racial, ethnic, gender, class, etc.) struggle, albeit on unequal terms, to make and establish their own meanings and identities. As the populists see things, the consumers of cultural commodities (movies, songs, fashions, television programs, etc.) neither uniformly receive nor uncritically accept the "preferred meanings"n50 that are generated and circulated by the culture industry. To varying degrees, depending on their social location and sophistication, consumers "resist" or even subvert these meanings. They "recode" cultural and even industrial commodities in ways that better serve their particular needs and interests, and "rework" them to express meanings different from the ones intended or preferred by their producers.
A full assessment of these rival positions is beyond the scope of this Article. The "populists" seem right to me, however, on several points that bear directly on the "right of publicity" issue. First, despite the dominance of global entertainment conglomerates, popular culture is not [*140] simply something that is "fabricated by technicians hired by businessmen"n51 and then imposed from above upon a passive, atomized, and uncritical populace. As Stuart Hall put it, the onsumers of cultural commodities are not all "cultural dopes."n52 Their participation is not "limited to the choice between buying and not buying."n53 Instead, the consumption of cultural commodities can be, and often is, an active, creative practice, in which the "consumer" appropriates the product by investing it with (new) meaning. There is, as Paul Willis has shown, a "realm of living common culture" in which individuals and groups use cultural and industrial commodities creatively to do "symbolic work" and thereby "establish their presence, identity, and meaning."n54
To be sure, there are significant constraints on this popular meaning-making.
Individuals and groups must do this symbolic work with centrally produced
and distributed commodities. They must make their culture out of these
commodities, for there are no other material or discursive resources available
to them.n55 What is more, the instability or volatility of meaning must
not be overstated.n56 The products or "texts" of the culture industries
(films, television programs, music,
fashion, stars, etc.) do generally come with "preferred" meanings already structured into them, meanings that often serve or reflect the interests of dominant groups. Against-the-grain readings of such texts may be very difficult to mount or sustain. The economic and ideological dominance of the culture industries thus significantly "limits the spaces and forms available for alternative or oppositional cultural practice."n57 But within these constraints, [*141] individuals and groups
do participate actively in the process of generating and circulating meanings that constitutes "culture." While our culture is far from a perfect democracy, it is more participatory and open-textured than the bleakest contemporary followers of Adorno and Horkheimer allow.n58
The "populists" also get the better of the argument on another important
point: the so-called "national audience" for mainstream cultural products
is in reality composed of a large number of overlapping subgroups and subcultures
structured along racial, ethnic, gender, generational, occupational, and
other lines. These groups have their own histories, experiences, interests,
and cultural competencies, which they bring to bear in the consumption
(that is, the reception and
appropriation) of cultural commodities.n59 For this reason, popular culture remains what it long has been: a struggle for, and over, meaning. It is a contest in which dominant groups try to naturalize the meanings that best serve their interests into the "common sense" and "taste" of society as a whole, while subordinate and marginalized groups resist this process with varying degrees of effort and success.n60 The contest is one in which the culture industries hold most of the cards, but in which there is some space for even relatively powerless groups and subcultures to generate or negotiate meanings that relate to their own experiences and positions and that serve their own interests better than does the dominant ideology.
It is impossible, I think, for the law to remain neutral in this contest. The law can strengthen the already potent grip of the culture industries over the production and circulation of meaning, or it can facilitate popular [*142] participation, including participation by subordinate and marginalized groups, in the processes by which meaning is made and communicated. The law can accelerate the already powerful trend toward centralized, top-down management of popular culture, or it can fight a rearguard (and perhaps futile) action on the side of a more decentralized, open, democratic cultural practice. Whether self-consciously or not, contemporary American intellectual property law has tended to throw its weight on the side of centralized cultural production.
In recent decades, as David Langen61 and a few other writersn62 have
observed, the law has moved more and more of our culture's basic semiotic
and symbolic resources out of the public domain and into private hands.
Consider, for example, the way in which antidilution doctrine is increasingly
being used to enable corporations to manage their public personas and immunize
them from oppositional recoding.n63 Or consider the recent "Gay Olympics"
case,n64 in which
the United States Supreme Court upheld the right of the United States Olympic Committee to prohibit a nonprofit gay rights organization from using the word "Olympic" to designate its own athletic competition, even in the absence of any likelihood of consumer confusion or deception.n65
The same centralizing process has been at work in the right of publicity
area. The judicial and academic rhetoric on publicity rights makes reference
to "economic incentives," "natural rights," and "unjust enrichment." The
subtext, however, is control over the production and circulation of meaning
in our society. This is so because star images are widely used in contemporary
American culture to create and communicate meaning and identity. The fact
that the culture and advertising
industries routinely and systematically use celebrity images in this way should be obvious enough. Indeed, it is only because celebrity images carry and provoke meaning that they can enhance the marketability of the commodities with which they are associated.n66 Their "associative" or "publicity" [*143] value derives from their semiotic power. What is somewhat less obvious is that individuals and groups also use star signs in their everyday lives to communicate meanings
of their own making. They make active and creative use of celebrity images to construct themselves and their social relations, to identify themselves as individuals and as members of subcultural groups, and to express and communicate their sense of themselves and their particular experience of the world. Indeed, celebrity images are among the basic semiotic and symbolic raw materials out of which individuals and groups "establish their presence, identity and
This is especially clear in the case of groups that are outside the
cultural mainstream. Richard Dyer has observed that particularly intense
audience-star relationships occur among groups such as adolescents, women,
and gays, who experience extreme "role/identity conflict and pressure,
and an (albeit partial) exclusion from the dominant articulacy of, respectively,
adult, male, heterosexual culture."n68 Dyer shows, for instance, how urban
gay men in the 1950s seized on
the image of Judy Garland as a powerful means of speaking to each other about themselves.n69 Along the same lines, Rosemary Coombe has drawn our attention to the way in which "celebrity images provide the cultural resources which those in marginalized groups use to construct alternative gender identities."n70 She notes, by way of example, that James Dean provides contemporary lesbians "with an icon which may embody a challenge to dominant understandings of the causal connections between biology, anatomy, desire, and sexual practice."n71
It is not just the members of marginalized groups, however, who draw on the celebrity image bank to define and identify themselves, or to express their sense of themselves and their particular experience of the world. Everyone from the President on downn72 does it to some extent, often through the consumption and display of celebrity paraphernalia: T-shirts, posters, greeting cards, etc. When we buy, exchange, and display cultural commodities of this kind, we "are actively contributing to the social circulation" of meanings about the celebrity.n73 "The choice of which Madonna T-shirt to buy," as John Fiske has noted, "is a choice about which meanings of Madonna to circulate."n74 It is a consumption decision in the first instance, yet it is also something more.
[*144] An example may help to sharpen the point.n75 A few years ago,
a bill was introduced in the New York Legislature to create a broad and
descendible right of publicity.n76 During hearings on the bill, some of
the testimony referred to a greeting card, said to be sold chiefly in gay
bookstores. The card bears a picture of John Wayne, wearing cowboy hat
and bright red lipstick, above the caption, "It's such a bitch being butch."n77
Wayne's children, among others,
objected to the card not only on the ground that its sellers were making money from The Duke's image -- money that should go to them, or, in this case, to the charity of their choosing.n78 They objected also, indeed primarily, because in their view the card was "tasteless" and demeaned their father's (hard-earned) conservative macho image.n79 To his children, as to most of his fans, "John [*145] Wayne" epitomizes traditional America's mythic and idealized view of itself,
its history, and its national character. What Wayne stands for -- what his image means in the mainstream cultural grammar -- is rugged individualism, can-do confidence, physical courage, and untroubled masculinity. That is the "preferred meaning"n80 of "John Wayne." It was on this preferred meaning that President Bush drew easily and effectively in communicating his military plans in the Gulf.n81 It is on that meaning, too, that Wayne Enterprises drew when it licensed
the Franklin Mint to sell (for $ 395) a "serially numbered, non-firing" replica of the .45-caliber automatic pistol that Wayne "carried in so many great military films."n82
Nevertheless, against-the-grain readings of John Wayne are also possible.
For instance, in a course on how to survive as a prisoner of war, the U.S.
Navy uses the term "John Wayning it" to mean trying foolishly to hold out
against brutal torture. The particular greeting card that Wayne's children
and others objected to so strenuously represents an even more subversive
inflection of Wayne's image. The card uses his image to interrogate and
challenge mainstream conceptions of
masculinity and heterosexuality. It recodes Wayne's image so as to make it carry a cultural meaning that presumably works for gay men, among others, but which Wayne's children (and no doubt many of his fans) find deeply offensive. If the New York Legislature were to make John Wayne's right of publicity descendible, however, it would confer on Wayne Enterprisesn83 the power to determine that this particular appropriation of the John Wayne image is "illegitimate," and to enforce that determination by denying a license to the greeting card maker. Wayne Enterprises would henceforth have the power to fix, or at least try to fix, the meaning that "John Wayne" has in our culture: his meaning for us.
What it comes down to, then, is that the power to license is the power to suppress. When the law gives a celebrity a right of publicity, it does more than funnel additional income her way. It gives her (or her assignee) a substantial measure of power over the production and circulation of meaning and identity in our society: power, if she so chooses, to suppress readings or appropriations of her persona that depart from, challenge, or subvert the meaning she prefers; power to deny to others the use of her persona in the construction and communication of alternative [*146] or oppositional identities and social relations; power, ultimately, to limit the expressive and communicative opportunities of the rest of us. The result is a potentially significant narrowing of the space available for alternative cultural and dialogic practice. Publicity rights, in other words, move us even further away from what John Fiske has called a "semiotic democracy"n84 -- a society in which all persons are free and able to participate actively, if not equally, in the generation and circulation of meanings and values.
The censorial potential inherent in the right of publicity is perhaps not reason enough to reject it tout court. After all, it is possible that this power will be used very sparingly -- although what evidence there is on this score provides little reason for optimism.n85 It is also possible that the law does not bite very hard or deep here, that while the existence of publicity rights deters or stifles some popular cultural production and prevents some representational practices, "social semiosis continues in spite of it."n86 It should, however, be up to the proponents of publicity rights to demonstrate that this is so. Absent such a demonstration, the risk of censorship and, perhaps more importantly, of self-censorship makes the burden of justification a substantial one. It falls to the proponents of publicity rights to explain why the risk is worth running. Appeals to "common sense" will not suffice here, nor will vague assurances that the First Amendment can be relied on to safeguard legitimate interests in expression.n87 Proponents of the right of publicity should be [*147] required to make a clear and convincing showing that important interests will be served by recognizing a property right in a celebrity's identity. In Part III, we shall see that no such showing has yet been made. First, however, we need to understand the forces, material and ideological, that have brought forth the right of publicity.
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* Copyright 1993 Michael Madow. Assistant Professor of Law, Brooklyn
Law School. B.A. 1971, Amherst College; M.A. 1978, Harvard University;
J.D. 1982, Columbia University. I owe special thanks to C. Edwin Baker
and Susan Herman for their unflagging encouragement and wise counsel. My
colleague Gary Minda read an early draft of this Article and made many
helpful suggestions. I also had the benefit of comments from Beryl Jones,
Neil Cohen, Paul Finkleman,
Benjamin Kaplan, Craig McNeer, Samuel Murumba, Norman Poser, and David Trager. Robert Dashow, Karen Bennett, and Teresa Matushaj provided valuable research assistance. The generous financial support of the Brooklyn Law School Summer Research Fund is gratefully acknowledged.
n31 Hearing to Discuss the Celebrity Rights Act Before the N.Y. State
Senate 8 (Feb. 25, 1988) (Upstate Reporting
Serv.) (transcript on file with author) [hereinafter 1988 Hearing]. State Senator Gold is the sponsor of a bill that would
create a broad and descendible right of publicity in New York. See S. 6843, 1988-1989 N.Y. Reg. Sess. For an
account of the background of this bill, see infra note 76.
n32 A notable exception is Tim Frazer, Appropriation of Personality
-- A New Tort?, 99 LAW Q. REV. 281 (1983).
Lawrence Becker makes a useful distinction among three different kinds or levels of justification of property rights. See
LAWRENCE C. BECKER, PROPERTY RIGHTS: PHILOSOPHIC FOUNDATIONS 22-23 (1977). A "general
justification of property rights gives an answer to the question of why there ought to be any property rights -- of any sort
-- at all." Id. at 23. A "specific justification" provides an answer to the question "why there ought to be a specific sort of
property right," such as copyright or "full, liberal" ownership of land. Id. A "particular justification" is one which "gives an
answer to the question of why a particular person ought to have a particular property right in a particular thing." Id. This
Article is concerned only with the second kind of justification.
n33 MCCARTHY, supra note 13, § 1.1[B], at 1-5.
n34 Id. § 1.11[C], at 1-46.
n35 Id.; see also id. § 2.1[B] ("The advocate of a Right of Publicity,
when called upon to explain why such a right should
exist at all, is not being illogical in simply challenging: 'Why not?'"). To be fair, McCarthy devotes the second chapter of
his treatise to the "policy reasons" advanced by courts and commentators in support of a right of publicity. But the
impression is unmistakable that he regards such argument as essentially supererogatory.
n36 Stuart Hall, Culture, the Media, and the "Ideological Effect" (1977),
quoted in DICK HEBDIGE, SUBCULTURE:
THE MEANING OF STYLE 11 (1979).
n37 Indeed, it is likely that the right of publicity seems "obvious"
or "commonsensical" to McCarthy and others largely
because the dominant folklore of celebrity -- from which the publicity right draws its primary rhetorical force and moral
appeal -- is part of a larger cultural mythology about the possibilities for, and rewards of, originality and individual
achievement in our society. See infra text accompanying notes 339-49.
n38 Richard Delgado, Inequality "from the Top": Applying an Ancient
Prohibition to an Emerging Problem of Distributive
Justice, 32 UCLA L. REV. 100, 118 (1984) (urging revitalization of the Antinobility Clauses of the Constitution as a way
of dealing with governmental actions that concentrate wealth, privilege, and power in small and select groups).
n39 Strictly speaking, everyone, obscure as well as famous, "has" a
right of publicity -- a property right in the economic
value of her identity. See MCCARTHY, supra note 13, § 4.3[G] (arguing that since line-drawing is impractical, every
person should have a right of publicity); Nimmer, supra note 13, at 217 (same). But see authorities cited in
MCCARTHY, supra note 13, § 4.3[B], at 4-13 n.1 (supporting minority view that noncelebrities have no publicity right).
As a practical matter, however, as Nimmer himself conceded, the right of publicity "usually becomes important only when
the plaintiff (or potential plaintiff) has achieved in some degree a celebrated status."nimmer, supra note 13, at 216. This is
because the damages recoverable for infringement of the right depend on the commercial value of the publicity that has
been appropriated, and thus on the plaintiff's "degree of fame." Id. at 217. Very rarely will the economic value of a
noncelebrity's identity be sufficient to support a lawsuit for infringement. (If what the noncelebrity seeks is injunctive relief,
then he will not need to invoke his right of publicity; his right of privacy should suffice.) Moreover, as we shall see below,
the right of publicity was consciously devised by courts and commentators to meet what were perceived as the special
needs of celebrities. See infra text accompanying notes 208-40. In short, while universal in form, the right of publicity is in
reality a special celebrity right. Any attempt to justify the right of publicity must reckon with that fact -- and with the fact
that while fame may be somewhat more democratic and evanescent nowadays than it used to be, some people are much
more famous than others, and some people just aren't famous at all. As Michael Walzer writes:
No simple equality of recognition is possible;
the idea is a bad joke. In the society of the future, Andy Warhol once
said, "everyone will be world-famous for fifteen minutes." In fact, of course, in the future as in the past, some
people will be more famous than others, and some people won't be famous at all.
MICHAEL WALZER, SPHERES OF JUSTICE 255 (1983).
n40 Geraldine Fabrikant, The Hole in Hollywood's Pocket, N.Y. TIMES, Dec. 10, 1990, at D1.
n41 See Murray Chass, Sandberg Becomes Highest-Paid Player, for Now, N.Y. TIMES, Mar. 3, 1992, at B11.
n42 Memphis Dev. Found. v. Factors Etc., Inc., 616 F.2d 956, 960 (6th Cir.), cert. denied, 449 U.S. 953 (1980).
n43 See Stuart Hall, Notes on Deconstructing "The Popular," in PEOPLE'S
HISTORY AND SOCIALIST THEORY
227, 233 (Raphael Samuel ed., 1981) (arguing that the process of cultural production and distribution is now
concentrated "in the heads of the few").
n44 Dwight MacDonald, A Theory of Mass Culture, in MASS CULTURE: THE
POPULAR ARTS IN AMERICA,
supra note 4, at 59, 60.
n45 Judith Williamson has put this point nicely:
The conscious, chosen meaning in most people's
lives comes much more from what they consume than what they
produce. Clothes, interiors, furniture, records, knick-knacks, all the things that we buy involve decisions and the
exercise of our own judgment, choice, "taste." Obviously we don't choose what is available for us to choose
between in the first place. Consuming seems to offer a certain scope for creativity, rather like a toy where all the
parts are pre-chosen but the combinations are multiple.
JUDITH WILLIAMSON, CONSUMING PASSIONS: THE DYNAMICS OF POPULAR CULTURE
see also STUART EWEN, ALL CONSUMING IMAGES: THE POLITICS OF STYLE IN CONTEMPORARY
CULTURE (1988); STUART EWEN & ELIZABETH EWEN, CHANNELS OF DESIRE: MASS IMAGES AND
THE SHAPING OF AMERICAN CONSCIOUSNESS (1982).
n46 For a judicious discussion, see John Clarke, Pessimism Versus Populism:
The Problematic Politics of Popular
Culture, in FOR FUN AND PROFIT: THE TRANSFORMATION OF LEISURE INTO CONSUMPTION 28,
28-44 (Richard Butsch ed., 1990). The terms I use in the text to identify the rival positions -- "cultural pessimism" and
"cultural populism" -- are borrowed from Clarke. Id. at 30, 34.
n47 See, e.g., Adorno & Horkheimer, supra note 8. The central claim
of this very influential essay is that the
commodification of culture brought about by the rise of the entertainment industries has divested art of its traditional
autonomy and critical power. According to Adorno and Horkheimer, the standardized mass entertainment products of the
culture industries operate to distract people from the alienation and drudgery of capitalist work relations and to implant
meanings that reinforce the dominant ideology.
n48 For an example of this position, see EWEN & EWEN, supra note
45; see also EWEN, supra note 45; HERBERT I.
SCHILLER, CULTURE, INC.: THE CORPORATE TAKEOVER OF PUBLIC EXPRESSION (1989).
n49 The leading exponents of this view are writers associated with or
influenced by the British "cultural studies"
movement. See, e.g., IAIN CHAMBERS, POPULAR CULTURE: THE METROPOLITAN EXPERIENCE (1986);
JOHN FISKE, READING THE POPULAR (1989) [hereinafter FISKE, READING THE POPULAR]; JOHN FISKE,
TELEVISION CULTURE (1987) [hereinafter FISKE, TELEVISION CULTURE]; JOHN FISKE,
UNDERSTANDING POPULAR CULTURE (1989) [hereinafter FISKE, UNDERSTANDING POPULAR
CULTURE]; HEBDIGE, supra note 36; ANDREW ROSS, NO RESPECT: INTELLECTUALS AND POPULAR
CULTURE (1989); PAUL WILLIS ET AL., COMMON CULTURE: SYMBOLIC WORK AT PLAY IN THE
EVERYDAY CULTURES OF THE YOUNG (1990). A good brief introduction to the main themes of this movement is
John Fiske, British Cultural Studies and Television, in CHANNELS OF DISCOURSE: TELEVISION AND
CONTEMPORARY CRITICISM 254 (Robert C. Allen ed., 1987) [hereinafter Fiske, British Cultural Studies]. For a
comprehensive critical appraisal of the cultural studies movement, see JIM MCGUIGAN, CULTURAL POPULISM
n50 This term has its origin in a seminal essay by the British writer
Stuart Hall. See Stuart Hall, Encoding/Decoding, in
CULTURE, MEDIA, LANGUAGE 128, 134-39 (Stuart Hall et al. eds., 1980). Hall starts from the post-structuralist
premise that "meaning" is not an inherent property of a cultural text or object. Television programs, for example, do not
have a single meaning; they are relatively open texts, capable of being "read" in different ways by different people.
According to Hall, however, television programs (and other cultural products) generally do "prefer" a set of meanings that
serves to strengthen the "dominant" ideologies. Viewers whose social location, particularly their class location, aligns them
with the dominant ideology, will -- Hall argues -- tend to accept the "preferred" meaning. But some viewers, whose social
position sets them in direct opposition to the dominant ideology, will resist the program's preferred meaning and instead
produce what Hall calls an "oppositional" reading. They will "inflect" or "recode" the program in such a way that it serves
their own particular needs and interests. Throughout this Article I use "preferred" and "oppositional" meaning/reading in
roughly this manner, without intending thereby to endorse Hall's view that class location is the primary determinant of how
cultural products are "read."
n51 MacDonald, supra note 44, at 60.
n52 Hall, supra note 43, at 232.
n53 MacDonald, supra note 44, at 60.
n54 WILLIS ET AL., supra note 49, at 1; see also CHAMBERS, supra note
49, at 53-54 (showing how urban street
"style" is achieved through the creative bricolage of ordinary commodities); HEBDIGE, supra note 36, at 2-4, 18
(examining how British youth subcultures -- mods and rockers, skinheads and punks-appropriate ordinary commodities
and invest them with meanings that express, in a kind of private subcultural code, their "resistance" to the dominant order
of things). Lawrence Grossberg has coined the useful term "excorporation" -- the antithesis of the Frankfurt School's
"incorporation" -- to identify the way in which subordinate groups take the products of the culture industries, turn them
against their producers, and use them in a resisting discourse. See Lawrence Grossberg, Another Boring Day in Paradise:
Rock and Roll and the Empowerment of Everyday Life, 4 POPULAR MUSIC 225, 232 (1984).
n55 See FISKE, UNDERSTANDING POPULAR CULTURE, supra note 49, at 15.
n56 It is crucial, I think, not to exaggerate the volatility of meaning
or the "effectivity" of audience resistance. Some
"cultural populists," John Fiske among them, manage to find traces of "subversion" almost everywhere they look -- in
street style and soap operas, in video game arcades and window shopping at the mall. For criticism on this score, see
SCHILLER, supra note 48, at 148-56; Clarke, supra note 46, at 41-42 (arguing that the material and ideological
dominance of the culture industries limits the space available for alternative and oppositional cultural practice). Cf. Jennifer
Wicke, Postmodern Identity and the Legal Subject, 62 U. COLO. L. REV. 455, 471 (1991) (criticizing what she calls
"resistance postmodernism" for its "overinvestment in discursive gestures" and for "the often fatuous assumption that . . .
the decentering of a discourse in some purely symbolic way sends shock waves to the heart of social domination").
n57 Clarke, supra note 46, at 41.
n58 A fundamental problem with Adorno and Horkheimer's work on mass
culture is that it not infrequently lapses into
what John Thompson has called the "the fallacy of internalism." THOMPSON, supra note 4, at 105 (emphasis omitted).
That is, Adorno and Horkheimer make the mistake of thinking that the effects cultural products have on people can simply
be "read off" the products themselves. As Thompson argues, this ignores the fact that "[t]he reception and appropriation
of cultural products is a complex social process which involves an ongoing activity of interpretation and the assimilation of
meaningful content to the socially structured background characteristics of particular individuals and groups." Id. It follows
that the only way to determine what effects these cultural products have on their audiences is to examine those effects
empirically. For some recent research efforts along these lines with respect to television programming, see sources cited
infra note 59.
n59 This has been borne out by a substantial body of empirical and ethnographic
literature showing that different social
and national groups produce different meanings from the same television programs. See, e.g., IEN ANG, WATCHING
DALLAS: SOAP OPERA AND THE MELODRAMATIC IMAGINATION (Della Couling trans., 1985) (1982)
(studying Dutch viewers of the television series Dallas); DAVID MORLEY, THE "NATIONWIDE" AUDIENCE:
STRUCTURE AND DECODING 137-47 (British Film Inst. Television Monograph No. 11, 1980) (using an open
interview approach to demonstrate a wide range of audience responses to a single television program); Elihu Katz &
Tamar Liebes, Once upon a Time in Dallas, INTERMEDIA, May 1984, at 28 (study of ethnic audiences of Dallas). This
literature is summarized in FISKE, TELEVISION CULTURE, supra note 49, at 62-83. See also SONIA M.
LIVINGSTONE, MAKING SENSE OF TELEVISION 43-49 (International Series in Experimental Social Psychology
Vol. 18, 1990).
n60 See Fiske, British Cultural Studies, supra note 49, at 255; Hall, supra note 43, at 227-28.
n61 See Lange, supra note 26, at 171 (expressing concern that contemporary
intellectual property law is choking off
access to the "public domain").
n62 See GAINES, supra note 28, at 232-39 (arguing that current intellectual
property law may be curtailing popular
cultural production); Coombe, supra note 28, at 1855 (arguing that in the current climate, "intellectual property laws stifle
dialogic practices -- preventing us from using the most powerful, prevalent, and accessible cultural forms to express
identity, community, and difference"); Wendy J. Gordon, On Owning Information: Intellectual Property and the
Restitutionary Impulse, 78 VA. L. REV. 149, 156-57 (1992) (observing that the recent judicial trend toward recognizing
new intellectual property rights "sometimes may interfere impermissibly with the autonomy of others and with efforts by
individuals to achieve cultural self-determination").
n63 See Coombe, supra note 28, at 1869-77.
n64 San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522 (1987).
n65 Id. at 535-41. For insightful criticism, see Robert N. Kravitz,
Trademarks, Speech, and the Gay Olympics Case, 69
B.U. L. REV. 131, 166-84 (1989) (criticizing the decision for undervaluing interests in free expression).
n66 See infra text accompanying notes 279-84.
n67 WILLIS ET AL., supra note 49, at 1.
n68 Richard Dyer, Charisma, in STARDOM: INDUSTRY OF DESIRE 57, 59 (Christine Gledhill ed., 1991).
n69 See RICHARD DYER, HEAVENLY BODIES: FILM STARS AND SOCIETY 141-94 (1986).
n70 Coombe, supra note 28, at 1876.
n71 Id. at 1877.
n72 See supra text accompanying note 6.
n73 FISKE, UNDERSTANDING POPULAR CULTURE, supra note 49, at 174.
n75 While the specific example I have chosen involves a deceased celebrity, nothing of consequence turns on that fact.
n76 See S. 5053-A, A. 8050-A, 1989-1990 N.Y. Reg. Sess. The impetus
for this legislative proposal was the decision
of the New York Court of Appeals in Stephano v. News Group Publications, Inc., 474 N.E.2d 580 (N.Y. 1984).
There, the court held that, contrary to a line of federal court decisions in diversity cases going back to 1953, no common
law right of publicity exists in New York. Celebrities seeking relief against unauthorized commercial appropriation of their
personalities must proceed under the state's privacy statute, which is codified as §§ 50, 51 of the New York Civil Rights
Law. Id. at 584. The protection that these provisions grant to celebrities, however, is narrower than the common law right
of publicity in several respects. First, §§ 50, 51 reach only unauthorized advertising or trade use of a "name, portrait, or
picture,"n.Y. CIV. RIGHTS LAW §§ 50, 51 (McKinney 1976 & Supp. 1992), whereas the common law right of
publicity encompasses a variety of other identifying characteristics, see Tin Pan Apple, Inc. v. Miller Brewing Co., 737
F. Supp. 826, 837-38 (S.D.N.Y. 1990) (use of a sound-alike does not violate §§ 50, 51); Allen v. National Video, Inc.,
610 F. Supp. 612, 624 (S.D.N.Y. 1985) (use of a look-alike does not violate §§ 50, 51 unless "most persons who could
identify an actual photograph of [the celebrity] would be likely to think that this was actually his picture"); Lombardo v.
Doyle, Dane & Bernbach, Inc., 396 N.Y.S.2d 661, 664-65 (App. Div. 1977) (bandleader's public personality as "Mr.
New Year's Eve" is protected by the common law right of publicity but not by §§ 50, 51).
Second, the privacy right secured by §§ 50, 51 is a nonassignable
personal right. See, e.g., Lombardo, 396 N.Y.S.2d at
664; Rosemont Enters., Inc. v. Random House, Inc., 294 N.Y.S.2d 122, 129 (Sup. Ct. 1968), aff'd, 301 N.Y.S.2d
948 (App. Div. 1969). In this sense, it is unlike the common law right of publicity. See Haelan Lab., Inc. v. Topps
Chewing Gum, Inc., 202 F.2d 866, 868 (2d Cir.), cert. denied, 346 U.S. 816 (1953). Third, although a cryptic
footnote in Stephano appeared to leave the question open, 474 N.E.2d at 584 n.2, courts have since held that the
statutory right created by §§ 50, 51 is not inheritable. See Pirone v. MacMillan, Inc., 894 F.2d 579, 585 (2d Cir.
1990); Smith v. Long Island Jewish-Hillside Medical Ctr., 499 N.Y.S.2d 167, 168 (App. Div. 1986); James v.
Delilah Films, Inc., 544 N.Y.S.2d 447, 451 (Sup. Ct. 1989).
The bill mentioned above is primarily designed to undo the impact of
the Stephano decision on New York law.
Accordingly, the bill defines the right of publicity as "a property right that every natural person, living or deceased, has in
his identity," and provides that the right is "descendible and . . . freely transferable." S. 5053-A, A. 8050-A, supra, sec. 1,
§ 58.1 (emphasis added). The bill would create a civil action, for damages and injunctive relief, for unauthorized
advertising or trade use of "name, voice, signature, photograph, or visual image." Id. sec. 1, § 58.2.
n77 See Daniel B. Moskowitz, Celebrities' Ghosts Are Hanging over Advertisers,
BUS. WK., June 3, 1985, at 108. A
copy of the card is on file with the author.
n78 Wayne Enterprises, a family-owned partnership which purchased from
John Wayne the exclusive right to use his
identity, donates net profits from its licensing agreements to the John Wayne Cancer Clinic at UCLA. Statement of
Michael Wayne Before the N.Y. State Senate in Support of the Celebrity Rights Act 3 (May 15, 1989) (transcript on file
n79 See id.; see also Moskowitz, supra note 77 (quoting Wayne's son
as complaining that the card "denigrates his
image"). Another "abuse" cited" at the New York legislative hearing was a greeting card that pictured Clark Gable
standing before the main staircase at Tara holding a scantily clad young man in his arms. The caption on the card was,
"Frankly, my dear, I do give a damn." Gable's son, John, testified that he and his family were greatly distressed and
offended by the card, and asked the Legislature to "help me preserve the image of my father." See 1988 Hearing, supra
note 31, at 34 (statement of John Clark Gable).
n80 For the meaning of this term, see supra note 50.
n81 See supra text accompanying note 6.
n82 Advertisement, LIFE, July 1989, at 95.
n83 See supra note 78.
n84 FISKE, TELEVISION CULTURE, supra note 49 at 236, 239.
n85 Many of the witnesses who testified in favor of the New York publicity
rights bill were candid about their intention to
supress appropriations whose substantive content they find tasteless or offensive. The sons of John Wayne and Clark
Gable, for example, would certainly deny licenses to the sellers of the greeting cards described above. See supra note 79
and accompanying text. Their objection to these cards was not that they were being sold without payment to the Wayne
and Gable estates, but that they were being sold at all. Interestingly, a great many of the "abuses" (in other words,
unauthorized appropriations) cited at the hearings were articles directed at a gay market. See, e.g., 1988 Hearing, supra
note 31, at 19-21 (Roger Richman complaining, inter alia, about male impersonators of Marilyn Monroe and about Oscar
Wilde Beer -- "bottled beer with an extra-long neck on it"). Roger Richman, who heads the exclusive licensing and
eforcement agency for numerous living and deceased celebrities, urged adoption of a publicity rights law to curb this
"denigration of our national treasures." Id. at 16. One person's "denigration," of course, is just another's recoding.
The property management agent of the Martin Luther King, Jr., Center
for Social Change estimates that half the requests
that are made each year for use of Dr. King's image are denied. Telephone Interview with Isaac Farris, Property
Management Agent, Martin Luther King, Jr., Center for Social Change (Sept. 18, 1990). Mr. Farris stated that licensing
decisions are made on a "case-by-case basis," and that products are evaluated on three criteria: their quality, their integrity
and character, and their degree of likeness to Dr. King. Id. He declined to estimate how many of the denials rest on
considerations of taste, value, viewpoint, and the like. He did state, however, that three recent proposals (a floor mat for a
car, a perfume, and a pocketknife) had been rejected under the "integrity and character" criterion. Id.
n86 See GAINES, supra note 28, at 239.
n87 David Lange noted some time ago that the First Amendment is too
"broad-gauged" a tool for this purpose, see
Lange, supra note 26, at 165 n.74, and subsequent developments have certainly proved him right. The courts have
reserved First Amendment protection for image-appropriating forms that are veiwed as having primarily cultural or
informational purposes (plays, songs, books, news, movies). Attempts to defend the sale of celebrity merchandise
(posters, T-shirts, greeting cards, games, etc.) on First Amendment grounds have been uniformly rejected. Compare
Rosemont Enters. v. Random House, Inc., 294 N.Y.S.2d 122, 128 (Sup. Ct. 1968) (First Amendment protection
accorded to a Howard Hughes biography), aff'd, 301 N.Y.S.2d 948 (App. Div. 1969) with Rosemount Enters, v.
Urban Sys., Inc., 340 N.Y.S.2d 144, 146-47 (Sup. Ct.) (First Amendment defense rejected for a Howard Hughes board
game), modified on other grounds, 345 N.Y.S.2d 17 (App. Div. 1973) and Rosemount Enters. v. Choppy Prods., 347
N.Y.S.2d 83, 85 (Sup. Ct. 1972) (First Amendment defense rejected for a Howard Hughes T-shirt bearing a satirical
comment). Courts generally do not discern any constitutionally protectible "speech" in these articles, despite their
communicative and culture-building functions. The common judicial reaction is to dismiss posters, games, greeting cards,
and the like as "mere merchandise." Chief Justice Bird's statement in the Lugosi case is typical:
[E]nforcement of the right of publicity may
conflict with freedom of expression in some cases. However, such a
conflict is not presented in this case. Plaintiffs challenged Universal's licensing of Lugosi's likeness in his portrayal of
Count Dracula in connection with the sale of such objects as plastic toy pencil sharpeners, soap products, target
games, candy dispensers and beverage stirring rods. Such conduct hardly implicates the First Amendment.
Lugosi v. Universal Pictures, 603 P.2d 425, 449 (Cal. 1979) (Bird, C.J.,
dissenting); see also Winterland
Concessions Co. v. Sileo, 528 F. Supp. 1201, 1214 (N.D. Ill. 1981) (distinguishing T-shirts from newspapers), aff'd,
830 F.2d 195 (7th Cir. 1987); Factors Etc., Inc. v. Creative Card Co., 444 F. Supp. 279, 285 (S.D.N.Y. 1977) (no
First Amendment protection for the sale of "posters of Elvis Presley as Elvis Presley"); Sims, supra note 27, at 493
("Courts have peremptorily rejected the idea that posters, games, or other celebrity memorabilia convey speech of
constitutional significance. . . .").