Preserving Personality and Reputational Interests of Constructed Personas Through Moral Rights: A Blueprint for the Twenty-First Century
Roberta Rosenthal Kwall | 2001 U. Ill. L. Rev. 151
In an age where every man and woman has fifteen minutes of fame, Professor Kwall examines ways in which American law should protect celebrities against unwarranted commercial exploitation. She argues that the doctrine of moral rights could be extended to constructed personas to protect the reputational and personality interests of celebrities. As other countries and international treaties move in this direction, Professor Kwall suggests that the United States should examine offering such protection to American personas.
Looking first to the similarities between moral rights and publicity rights, Professor Kwall highlights the advantages of protecting personality and reputational interests through copyright's moral-rights provision. Such an approach would be constitutionally sound, because a constructed persona falls within the definition of "a writing" as the term is used in the Constitution's Copyright Clause. She argues that a constructed persona is an original work of authorship that is sufficiently tangible to be afforded copyright protection. By protecting constructed personas in this way, people whose livelihoods depend on the preservation and integrity of their personas will be protected. Also, because the limiting doctrines of copyright law would be applied to the protection of constructed personas under moral-rights law, issues of free speech and societal access can be considered in connection with damage to the personal interests of the persona.
*Raymond P. Niro Professor of Intellectual Property Law, Director, DePaul College of Law Center for Intellectual Property. A.B., Brown University; J.D., The University of Pennsylvania.