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Cardozo Arts & Entertainment Law Journal

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Cardozo Arts & Ent. L.J.





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Recent legal history has witnessed the creation of a large number of new forms of property. Consequently, judges and legislators have generally been willing to imbue these new forms of property with all or most of the attributes of traditional property. In this article we try to explain this trend by examining one important new kind of property, the publicity right. Publicity rights initially emerged in response to functionalist considerations: transferable rights were needed to keep pace with commercial custom. As time went on, courts began to expand the attributes of the right to new frontiers, such as inheritability. In taking this leap, courts generally relied on the following chain of reasoning: "since the right is assignable, it must be property, and since it is property, it must have attribute X (which is shared by all property)." This type of reasoning continues to dominate many cutting-edge publicity rights debates in the courts and commentaries today, such as the debates over the treatment of publicity rights as full-fledged property upon divorce and bankruptcy. Our aim here is twofold: 1) to propose a new, ideological/ conceptual explanation for part of the explosion in new forms of property: once an article acquires one of the attributes of property, legal actors will label it property and thus it will tend to acquire the other traditional attributes of property as well; and 2) to criticize this sort of conceptualist reasoning with respect to publicity rights and elsewhere and to reorient the debate back down to the rich, ground-level policy issues.


© 2005 David Landau and David Westfall


First published in Cardozo Arts & Entertainment Law Journal.

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