For many years, English judges have not been fervent supporters for according an exclusive right based on vague notions, such as name, image or fame. This article will question the legitimacy of personality rights, especially the right to publicity and the right to one’s image by doing a comparison with intellectual property regime.

In the last few years, the whole world has noticed the abundance of celebrities’ images. Indeed, the number of publicity represented by celebrities has incredibly increased whether it is for drinks, perfumes, cosmetics or sport clothes. On the one hand, commercial companies are aware of the fact that celebrities will draw much more attention from the public on the product than publicity with unknown persons. On the other hand, celebrities are aware of the importance of their image in order to succeed. However, personality rights are not limited to commercial gains but can also involve moral aspects, such as the reputation and honour.

Some commentators consider that personality rights should be protected by intellectual property because of the similitude of their justifications. As a matter of fact, personality rights are generally justified by the labour theory, the personhood theory and the economic incentives theories, which are the above-mentioned justifications of Intellectual Property.

According to Locke’s theory, “everybody is entitled to the fruits of their labour, and to prevent those from reaping without sewing. This theory has much appeal to the celebrity industry as it facilitates a celebrity in protecting their persona where they have expended time, effort and investment in constructing their celebrity persona”

[1]. However, one may argue that this theory does not make sense considering that some celebrities have not really laboured for their personality. Indeed, labour theory does not take in consideration people who became famous simply as a result of circumstances or other persons labour, such as his agent, producer, studios etc.

Secondly, the Hegel’s personhood theory argues that “property rights are considered as a means to protect the personality interests or personhood of an individual. He bases the property right on the fact that creations are an external expression of the creator’s personality, so that conferring property rights is the most efficient way to produce social wealth”[2]. However, celebrity image cannot concern this theory. In fact, it has been argued that Hegel’s theory refers to the most fundamental aspects of the individual (such as his life or liberty), which, if taken away or altered, would result in the person destroying; slavery is an example. Considering that and the fact that the public identity of a celebrity is different from his true identity, the celebrity image does not fall into this category, as a change in the external public image of a celebrity is not such a fundamental destroying.

Finally, the economic justifications claim that giving a property right to celebrities encourages them to spend time, effort and money in their personality and encourages the population to undertake socially enriching activities. However, in practice, this theory is not really demonstrated. It has been demonstrated that famous people are motivated by career progress and fame, rather than economic profit.

In conclusion, it has been demonstrated than none of the justifications for personality rights were consistent enough.

 

 

 

[1] C. Walsh, ‘The justifications underlying personality  rights’ (2013) 24(1) Ent. L.R., 18

[2] C. Walsh, ‘The justifications underlying personality  rights’ (2013) 24(1) Ent. L.R., 18