brian mcsherry

Right of Publicity”, is a case study that takes prec edents decided by various jurisdictions on topics of copyrightability and identity as intellectual propery. Intended to purposefully infringe on celebrity images, “Right of Publicity” uses amorphous non-copyrightable materials: mirrors, reflection, and light, to commercially infringe upon the protected amorphous identity of celebrity.

As “Right of Publicity” is intended to be a clear case of copyright and identity infringement, the case examines:(1) if amorphous light/identity can be copyrighted, (2) are the materials and subject matter transformative enough for fair use analysis, (3) can commenting and critiquing the law be a form of fair use, and (4) in the analysis of fair use which is more important, the purpose and the character of the use or the effect upon the marketplace.

While this case study questions time-based materials, such as light, for copyrightability, transformativeness, and fair use; it also addresses the paramount question if courts grant deferential treatment in fair use to celebrity economics  (e.g., newsworthiness protections for paparazzi/tabloids and intellectual property protection for identity) over artistic free speech in remix/appropriation culture.

"Right of Publicity", Screenprint, Mirror, Adobe CC, Light, 2014