Emory Law Journal


Kimberly Rubin


Society is consumed with celebrities, and celebrity identity has pervasive power. Two bodies of law are turned to when there is unauthorized exploitation of a celebrity¿s likeness or persona. One, Section 43(a) of the Lanham Act, is a federal trademark statute, and the other is the common law right of publicity. Congress designed Section 43(a) to protect consumers from mistakenly believing that a celebrity endorsed a particular product, while the right of publicity centers on the celebrity¿s economic interest in his or her own identity. The interests that both the Lanham Act and the right of publicity are designed to protect must be balanced with the First Amendment interest in free speech. The Ninth Circuit recently decided two cases dealing with this balance. The two cases had very similar fact patterns, but the Ninth Circuit used different tests to analyze the claims, leading to opposite holdings. This Comment advances the novel argument that the Ninth Circuit and other courts should use a new test, combining the transformative use test and a modified likelihood of confusion test when evaluating Section 43(a) Lanham Act claims.