This Article posits that state law right of publicity actions offer a potential remedy for non-musical performers who fall victim to the phenomenon of “flash infringement,” the instantaneous and unauthorized uploading and dissemination of performances by live event audiences. In 2021, comedians, actors and magicians, may be able to use the right of publicity to protect the value of their unique performances, since their non-musical acts are not covered by the Federal Anti-Bootlegging Statute. Moreover, under California law, secondary liability actions with respect to this unique performance right might allow performers to sue social media companies for providing a commercial platform for the infringement. That could lead to significant recovery for these performers and for other stakeholders in the rights of the performance.
Michael M. Epstein,
Flash Infringement 2.0: Protecting “Unique Performance” From Live Social Media Distribution as a Right of Publicity,
41 Loy. L.A. Ent. L. Rev. 151
Available at: https://digitalcommons.lmu.edu/elr/vol41/iss2/2