宣传权与综合知识产权战略

PublicityRights andIntegrated IPStrategy Alexander Cuntz,Brent Lutes, andMatthias Sahli Elvis’ Ghost or Digital Replica? Publicity Rights and Integrated IP Strategy∗ Alexander Cuntz1, Brent Lutes2, and Matthias Sahli1,3 1World Intellectual Property Organization, Department for Economics and Data Analytics, 2U.S. Copyright Office, Washington D.C., United States, blutes@copyright.gov3Bern University of Applied Sciences, Business School, Bern, Switzerland, matthias.sahli@bfh.ch October 9, 2025 Abstract “Rights of publicity” provide a degree of control over one’s name, image, and likeness (NILs), and canhave significant commercial value, especially with the advent of artificial intelligence and digital replicas.Although publicity rights have recently received substantial media and legislative attention, they have sofar escaped the attention of economists.This article remedies that with the first empirical examinationof publicity rights, using asynchronous changes in U.S. state laws to explore potentially welfare-improvingeconomic incentives and the interaction of NIL protections with other intellectual property rights, thus layingthe foundation for a new line of economic inquiry. Keywords:publicity right, likeness, copyright, trademark, empirical, difference-in-differencesJEL Codes: O34, O33, K42, L82, Z10 It is no secret that many celebrities (both living and dead) bank on revenues generated fromtheir name, image, and likeness (“NIL”).For example, the estate of Elvis Presley reportedlygenerates millions of dollars per year from sources not directly related to Elvis’ music rights. Thisincludes selling Elvis merchandise, producing Elvis-themed events, and licensing his likeness forvarious uses, such as film and television.Michael Jordan has reportedly earned$1.5 billion forassociating his persona with Nike products. The estate of Tupac Shakur earns money from “live”(holographic) performances despite the rapper dying several decades ago.With the latest waveof digitization, new digital replica uses and other commercial opportunities to exploit NIL assetshave greatly expanded (Acemoglu and Restrepo, 2018; Brynjolfsson et al., 2023; Peukert, 2019).1At the same time, however, these new avenues for exploitation also include unlawful uses such asdeepfakes. Indeed, as Figure 1 illustrates,2perceived violations of publicity rights spurred by recenttechnological changes related to artificial intelligence (Lutes, 2025) have increased dramatically. Inaddition to the growing role of AI in NIL policy debates, the issue has been further thrust intothe limelight by recent legal disputes, such as the class action case against the National CollegiateAthletic Association (NCAA), the settlement of which granted$2.8 billion in compensation for useof NIL rights to collegiate athletes for the first time in US history.3 “Rights of publicity” (also referred to as “publicity rights”) serve as one of the primary legalmechanism for excluding the unauthorized use of one’s NIL, and they have been extensively dis-cussed among legal scholars and in cultural studies (Rothman, 2018; Nimmer, 1954; Madow, 1993;Tan, 2007). While these rights are not always based in purely economic terms (they are often jus-tified by way of normative values of fairness), it is nonetheless useful to understand the extent towhich they affect related commercial activity, and how they might interact with other intellectualproperty rights (IPRs). So far, these rights have received very little attention in the economic liter-ature (Posner, 1977; Landes and Posner, 2003a; Dogan and Lemley, 2005; Lutes, 2025). This paperis an important step towards filling that gap, providing the first systematic empirical evidence toinform public policy debates and strategic IPR management around NIL assets in the digital age(Nagaraj, 2018; Reimers, 2019; Giorcelli and Moser, 2020; Fosfuri and Giarratana, 2008; Appelt,2009; Danaher et al., 2013; Kaiser et al., 2023; Castaldi et al., 2020; Peukert and Windisch, 2023). Noting that more research is needed to understand the full breadth of economic and manage-ment issues around publicity rights, here we narrowly focus on exploring the causal relationship between losing publicity rights and subsequent changes in celebrity popularity, related commercialactivities, copyright reliance, and trademark reliance. To do that, we exploit asynchronous changesin certain U.S. state laws regarding the application of postmortem publicity rights to celebritiesresiding in those states, combined with a battery of outcome variables from various official andonline sources (including Google, YouTube, the Lumen project, the U.S. Patent and TrademarkOffice, and the U.S. Copyright Office). At the outset, the theoretical relationship between publicity rights and the commercial ac-tivity related to NIL assets is not straightforward, nor is the role of publicity rights in an inte-grated IPR strategy.While exclusive rights may encourage celebrities to more