Whose who? The case for a Kantian right of publicity

Rapidly developing technological opportunities for unauthorized uses of ide ntity-from "virtual kidnapping" to digitalcasting-coincide with growing dem and for a preemptive federal right of publicity that can replace the existi ng welter of inconsistent state laws. Progress is impeded, however, by intr actable doctrinal confusion and academic hostility to the right as allegedl y inimical to society's cultural need to manipulate celebrity images. Becau se the right of publicity is traditionally based on Lockean labor theory an d analogized to intellectual property in created works, it is vulnerable to such attacks; to date, no serious attempt has been made to elaborate an al ternative philosophical justification that can withstand them. In this Article, Dean Haemmerli uses Kantian philosophy to justify an auton omy-based right of publicity. lit doing so, she challenges both the traditi onal approach to the right of publicity and its postmodernist critiques. Fi rst, the Article's proposed reconception of the right of publicity rejects the existing doctrinal bifurcation of publicity and privacy rights and expl icitly embraces both the economic and moral facets of the individual's need to control the use of his identity. Second, by grounding the right in pers onal autonomy rather than purely pecuniary interests, the Article gives it greater weight in the balance against competing First Amendment considerati ons. At the same time, in order to contain potential abuses of a more expan sive right, the Article considers First Amendment, fair use, and first sale doctrine limitations and incorporates various elements of these limitation s into proposed legislative language establishing a preemptive federal righ t of publicity.