When Professors Rothman and Ginsburg asked me to speak here on the issues surrounding territoriality, jurisdiction, choice of law, and the like in the law of publicity, I confessed that I knew little about the developing law of publicity rights. Having taught Copyright Law for many years, I had come across the well-known foundational publicity rights cases—the cases involving Tom Waits, Vanna White, and Bette Midler—because of the problematic relationship between those decisions (under California state law) and federal copyright law. But I had not studied the publicity doctrine, or the main corpus of cases and statutes, with any great care.
I had, however, done some thinking over the years about territoriality and jurisdiction in other contexts. I was happy to have the opportunity to dive in and spend a couple of months immersing myself in the publicity cases and commentary to try to discover how those questions played themselves out in this particular corner of the legal universe. I found the results “alarming.” I use the term advisedly, so let me try to explain what I mean by it.