The Mic Drop: The Urgent Call for SCOTUS to Settle the Discord on Right of Publicity Preemption and the Split that Never Was

The Roberts Court and . . . 50 Cent? Surely, no one predicted this duo, but sooner rather than later, it may be reflected in casebooks across the nation. In 2020, the Second Circuit joined what has been referred to as a growing circuit split over the tension between state law right of publicity claims and federal copyright preemption. Aligning with the Eighth and Ninth Circuits, the Second Circuit held that a state law right of publicity claim was preempted. Conversely, the Third, Fifth, and Seventh Circuits have held that copyright law does not preempt state law right of publicity claims. This Note examines the diverging precedents shaping this discourse and the resulting tension as courts attempt to balance an individual’s right to control the use of their identity, likeness, and persona under state law while giving effect to the supremacy of federal law. Through an examination of the precedent set by either side of the split, as well as the history and purpose of federal copyright law and state law right of publicity, this Note will unravel the complexities of intellectual property and explore why the alleged circuit split may, in fact, be reconciled. It will highlight how the Second Circuit’s decision sets a precedent inconsistent with either side of the coined circuit split. The Second Circuit’s ambiguous decision carries significant negative implications for the vibrant and ever-evolving entertainment industry. This Note contributes to the ongoing dialogue by addressing the need for a clear, uniform framework for the circuit courts and explaining why the Second Circuit got it wrong. Lastly, it will recommend how the United States Supreme Court should resolve this issue, in this ultimate rap battle.