Fictional Persona Test: Copyright Preemption in Human Audiovisual Characters Academic Article uri icon


  • Whether a producer's copyright in human audiovisual characters preempts the actors' rights of publicity claims is the focus of this Note. Part I outlines the framework of state right of publicity law and traces the development of case law involving such a right. Because "[a]dvertisers who want to run a particular advertisement nationally must comply with the law of all fifty states," this Note focuses on the right of publicity of the state with the broadest interpretation-the state of California. This Part shows that, under existing California right of publicity law, virtually anything evoking one's personal identity, including copyrighted materials, can infringe upon the individual's right of publicity. Since a display of a copyrighted work might infringe upon an individual's right of publicity, the right of publicity might threaten valuable rights of a copyright holder, which are granted by the 1976 Copyright Act ("Copyright Act"). Thus, Part II examines whether Congress intended the Copyright Act to preempt the conflicting state right of publicity and, if so, what is the scope of such preemption Part III applies section 301 of the Copyright Act ("the preemption provision") to resolve the conflict between the actor and the copyright holder over the use of a human audiovisual character. This Part introduces the dichotomy between human persona and fictional persona-the two different types of persona that an allegedly infringing work can exploit. This Part then asserts that the Copyright Act only preempts state rights with respect to fictional persona and that courts should limit the state right of publicity to reflect such preemption. Since the type of persona exploited by the contested work determines the outcome of the preemption question, Part IV proposes a "fictional persona" test to help courts determine whether the allegedly infringing work exploited a fictional persona.

published proceedings

  • Cardozo Law Review

author list (cited authors)

  • Yu, P. K.

complete list of authors

  • Yu, Peter K

publication date

  • September 1998