Right of publicity in Scots law
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This thesis examines publicity exploitation in practice and the possible legal response of Scots law to that exploitation. It argues that the common law in Scotland is not capable of providing a coherent and principled right of publicity for individuals, and that a statutory right is instead required. By examining the nature of publicity exploitation and the activities that constitute publicity, it becomes clear that there are a number of different methods by which an individual’s “persona” – name, image, identity and reputation – can be used to enhance the goods and services of others, and that this enhancement is something for which other parties are willing to pay. The first part of this thesis explores publicity in practice, in order to derive a framework and vocabulary on which to build the subsequent legal analysis. One conclusion reached here is that, whereas much case law and academic commentary focuses on the unauthorised use of persona, authorised exploitation is more common and more lucrative for the individual. Both authorised and unauthorised use therefore need to be represented in a publicity right. The second part explores justifications for establishing a legal right to regulate the exploitation of publicity and to enable the control of such exploitation by the individual in question. These justifications reflect the dual interests at stake in publicity rights, being dignitarian interests in the use and control of one’s persona, and economic interests in the financial value of such use. The third part of the thesis draws upon the findings of the first two parts in order to assess the most appropriate legal classification of a right of publicity. The conclusion reached is that publicity cannot be sufficiently protected through established real rights or personal rights. Instead, the hybrid nature of publicity, comprising dignitarian and economic interests, should most appropriately be protected through a right in the nature of exclusive privilege (a concept already known in Scots law). This right is capable of enabling the necessary control of persona for the individual, subject to appropriate limitations to recognise the competing interests of other parties. These limits include freedom of expression and cultural communication. The final conclusion is that such a statutory right of exclusive privilege would be best placed to give principled and coherent effect to a right of publicity in Scots law.