108 Iowa L. Rev. 505 (2022)

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Abstract

The right of publicity enables people to control the commercial use of their identities. This control implicates the First Amendment by dictating when and how the public may use a person’s name, image, or likeness in speech. Iowa belongs to a minority of states that do not possess a right of publicity statute or common law. This lack of guidance regarding when the public may use a person’s identity threatens to chill free speech, creates inefficient judicial outcomes, and upsets the balance that Congress has already struck between other intellectual property rights and the First Amendment. This Note argues that Iowa should adopt a right of publicity statute that incorporates copyright law’s fair use doctrine to avoid these undesirable outcomes. This Note also outlines the history of the right of publicity and states’ current approaches to resolving tension between the right of publicity and the First Amendment, identifies three reasons why Iowa needs a right of publicity statute that incorporates copyright law’s fair use doctrine, and proposes statutory language for the Iowa legislature to adopt.