lysts have contended that"much of what artists and innovators do in the arena, for example composing music, books, and works of art, is not generally motivated by Similarly, and notwithstanding widespread theoretical critiques of expanded protection of celebrity identity, the United States Supreme Court has posited that economic incentive theory best justifies the legitimacy of the right of publicity for individuals. Analysts have noted that in this connection that granting a property right in a person's identity results in the most efficient use of that identity because it induces the advertiser with the highest-valued use to purchase the right to use the identity at the market price. Commentators have argued conversely that both" the Lockean labor rationale [and] the economic incentive rationale may be an insufficient foundation upon which to base the right of publicity BARRETT supra note at 19. See also K.J. Greene, Copyright, Culture and black Music: A Legacy of Unequal Protection, 21 HASTINGS COMM. ENT L.J. 339, 358(1999)(contending that copyright law historically failed to protect works of African-American music artists, yet Black artists produced some of the most innovative and lucrative works in American music) 4 See e g. Steve P. Calandrillo, An Economic Analysis of Property Rights in Information: Justifications and Problems of Exclusive Rights, Incentives to Generate Information, and the Alternative of a Government-Run Reward System, 9 FORDHAM. INTELL. PROP. MEDIA AND ENT. L.J. 301, 312 (1998) For a pointed critique of the underlying rationales for right of publicity protection, see Michael Madow, Private Ownership of Public Image: Popular Culture and Publicity Rights, 81 CAL L REV. 127(1993) See Zacchini v. Scripps-Howard Broadcasting Co, 433 U.S. 562(1977)(noting that television newscasters broadcast of entire human cannonball act posed"a substantial economic threat to that act.if act free on television, it will be less willing to pay to see it at the fair). See also Lugosi v. Universal Pictures, 25 Cal. 3d 813(Cal. 1979)(Bird, J. dissenting) contending that"the gravamen of the harm flowing from an unauthorized commercial use of a prominent individuals likeness is in most ases the loss of potential financial gain, not mental anguish") 4 Bruce P. Keller and David H Bernstein, The Right of Publicity: Toward a Federal Statute?,532 PRACT. L INST. PAT. 413, 417(1998) P See Note, Erika Paulstrde, Not the Last Dance: Astaire v. Best Film Video Corp. Proves California Right of Publicity Statutes and the First Amendment Can Co-Exist, 18 LOY. L A. ENT. L.J. 395, 404 (1998)11 analysts have contended that “much of what artists and innovators do in the arena, for example composing music, books, and works of art, is not generally motivated by profit.”41 Similarly, and notwithstanding widespread theoretical critiques of expanded protection of celebrity identity,42 the United States Supreme Court has posited that economic incentive theory best justifies the legitimacy of the right of publicity for individuals.43 Analysts have noted that in this connection that granting “a property right in a person’s identity results in the most efficient use of that identity because it induces the advertiser with the highest-valued use to purchase the right to use the identity at the market price.”44 Commentators have argued conversely that both “the Lockean labor rationale [and] the economic incentive rationale may be an insufficient foundation upon which to base the right of publicity.”45 40 BARRETT supra note ___ at 19. See also K.J. Greene, Copyright, Culture and Black Music: A Legacy of Unequal Protection, 21 HASTINGS COMM. & ENT. L.J. 339, 358 (1999)(contending that copyright law historically failed to protect works of African-American music artists, yet Black artists produced some of the most innovative and lucrative works in American music). 41 See e.g. Steve P. Calandrillo, An Economic Analysis of Property Rights in Information: Justifications and Problems of Exclusive Rights, Incentives to Generate Information, and the Alternative of a Government-Run Reward System, 9 FORDHAM. INTELL. PROP. MEDIA AND ENT. L.J. 301, 312 (1998). 42 For a pointed critique of the underlying rationales for right of publicity protection, see Michael Madow, Private Ownership of Public Image: Popular Culture and Publicity Rights, 81 CAL. L. REV. 127 (1993). 43 See Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977)(noting that television newscaster’s broadcast of entire human cannonball act posed “a substantial economic threat to that act…if the public can see the act free on television, it will be less willing to pay to see it at the fair”). See also Lugosi v. Universal Pictures, 25 Cal.3d 813 (Cal. 1979) (Bird, J. dissenting)(contending that “the gravamen of the harm flowing from an unauthorized commercial use of a prominent individual’s likeness is in most cases the loss of potential financial gain, not mental anguish”). 44 Bruce P. Keller and David H. Bernstein, The Right of Publicity: Toward a Federal Statute?, 532 PRACT. L. INST. PAT. 413, 417 (1998). 45 See Note, Erika Paulstrde, Not the Last Dance: Astaire v. Best Film & Video Corp. Proves California Right of Publicity Statutes and the First Amendment Can Co-Exist, 18 LOY. L.A. ENT. L.J. 395, 404 (1998)