I suspect you’re right that the song is more likely to affect our interpretation of the meaning of Rosa Parks, and I think I probably agree that the song is a better candidate for initial inclusion under the right of publicity. But, as I make explicit in my paper, I was only trying to define the initial interest. The First Amendment interests in the song, in my view, would outweigh Rosa Parks’ interests in controlling the meaning of her identity. My hope was to avoid that conflict as much as possible – recognizing that it is not always possible.

It’s a giant can of especially squiggly worms, no matter how you deal with it…

You’re right that I’ve suggested that the right of publicity interest should be limited to control over the meaning of identity (the piece Frank’s referring to is at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=794844). But I don’t think my formulation necessarily leads to the conclusion that Rosa Parks could stop someone from using her image on a toy bus, unless people believed that Rosa Parks somehow sponsored or endorsed that use. I recognize there are some problems with tying the standard to something like the likelihood of confusion test in trademark law, but I think it would be a lot better than the system we have now (especially with more robust acceptance of disclaimers).

As for the question of how meaning is created, I guess I’m not as post-modern as Mike. I think the value of a particular image is largely dependent on how people respond to that image, but that particularly in the current celebrity packaging environment, the meaning is more a function of what’s projected. William Shatner’s career is actually a good example of that point – it is a combination of mixed meaning sources, but most of those meanings were ones he chose and projected.

But I don’t think that Mark McKenna’s standard is a more workable alternative; celebrity meaning is often at least as much a creature of consumer associations as a function of brand management. (William Shatner’s career, for example, is in many ways a delightful example of mixed meaning sources.) In some ideal world, it might be possible to separate the one from the other . . . .