An Exclusive Right to Evoke

Ten years ago, in White v. Samsung Electronics America, Inc., the U.S. Court of Appeals for the Ninth Circuit held that a robot violated Valuta White’s publicity rights. Since Mite, the tendency to equate evocation with infringement in trademark and right of publicity cases has only grown. In contrast to this expansionist trend in trademark and right of publicity law, however, courts in recent copyright cases have arguably backed away from a strong right to evoke. This Article identifies these trends and suggests some reasons for concern over an exclusive right to evoke. The author argues that if we wish to preserve a rich commons and avoid significantly chilling free expression, courts should at least cabin the right to evoke and ensure that, when utilized, it serves the law’s normative goals.