DIOS MIO—The KISS Principle of the Ethical Approach to Copyright and Right of Publicity Law

Abstract

To copy or not to copy, to exploit the famous celebrity image or not to exploit it; these are the questions. The message of the modern legal world communicated through multiple voices in the academy is that copying often is perfectly acceptable and even laudable. An artist or designer might conclude that it is both legal and ethical to use whatever you can, use whatever you can get away with, and use it until you get sued for using it. Yet plagiarism in the arts and sciences is nearly universally condemned. This Article proposes an ethical approach to the use of copyrighted works and names, images, and likenesses protected by the right of publicity. This approach is based on the ethical requirements of the law as synthesized from the cases presenting concrete narratives concerning fair and appropriate uses of protected works, names, and images. My thesis may be summed up in a revised form of the KISS principle (Keep it simple, stupid!) known as "DIOS MIO: Don’t Include Other’s Stuff or Modify It Obviously". Although simplified to this acronym, the ethical considerations concerning copyright-protected works and right of publicity-protected names and images are far from simple. The advice of this Article reflects the convergence of predominant purpose analysis and transformative/transformation analysis in copyright and right of publicity law that has led to a single set of recommendations for the legal and ethical treatment of protected works and celebrity names, images, and likenesses: seek first to create and not to copy or exploit, and create new expression by obvious modification of the old expression and content.