Raising walls against overlapping rights: preemption and the right of publicity

The right of publicity overlaps with trademark in its protections against false endorsement, with copyright in its (supposed) justifications in incentivizing performances, and with traditional privacy and defamation torts in protecting personal dignity and control over one's own presentation of the self. Yet the right of publicity has been used to extend plaintiffs' control over works and uses that don't violate any of the rights with which it shares a justification. This quicksilver nature is what makes the right of publicity so dangerous. The law of overlaps in the form of preemption cases might offer some assistance in suggesting a purposive approach. Where the state-law right of publicity has a similar purpose to that of copyright, it can conflict with that right and be preempted by federal law. Here, Tushnet discusses overlapping rights by comparing how preemption and First Amendment law have used purposive approaches to limit the right of publicity.