Law review article: ON BOBBLING HEADS, PAPARAZZI, AND JUSTICE
to disallow right of publicity claims by public officials through an absolutist
application of the First Amendment as articulated by Justice Black.
Of bobbleheads: The case of the Governor Schwarzenegger bobblehead illustrates the difference. n112 Under a right of publicity claim, the Governor could enjoin the depiction of his image with a gun. This was the result of the settlement in the
actual dispute. Under a false advertising or false endorsement claim, however,
the Governor could enjoin the depiction of his image with the gun only if
the depiction caused consumer confusion as to his association with or
endorsement of a gun or the particular make of the gun represented in the bobblehead. A right of publicity claim protects the economic and property rights of the public official; a false advertising or false endorsement claim protects the
interests of consumers to be free from confusion.
The reference to Justice Black is to the dissent in N.Y. Times Co. v. Sullivan, 376 U.S. 254, 296 (1965).
Yes, there is a reference to Samuel Warren & Louis Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890). There is also a reference to Mark Lemley & Eugene
Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48
Duke L.J. 147, 169-80 (1998).
There is a cite to Sunstein, Why Societies Need Dissent? , at 97-98 (arguing that the principle of freedom of speech protects the right to dissent against the
government), but there is no mention of the New Jersey Supreme Court case involving the right, under the First Amendment, to discuss disciplinary actions against lawyers.