A flawed act: balancing rights of free speech and publicity

While trademark rights protect the commercial value of goods or services,
the right of publicity protects the commercial value of an individual's identity,
even after his or her death. Unlike trademark rights, however, the right of
publicity in the United States is a creature of state common and statutory law
that remains unsettled. Thomas M Small and J Alison Grabell of Birch Stewart
Kolasch & Birch LLP in Los Angeles explain that the courts have struggled
to interpret when an individual's right of publicity trumps a defendant's constitutional
right of free speech.

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