Introduction

The next two chapters consider two pervasive problems: first, what is meant by a property right or intellectual property right in attributes of personality, and, second, whether such a right can be justified. The problem of appropriation of personality lies on the periphery of intellectual property law, and it is unclear whether attributes of personality should be protected alongside the well-accepted forms of intangible property such as patents, copyright, trade marks and goodwill. The English courts have been reluctant, thus far, to address the issue of whether rights of property may exist in an individual's name, voice or likeness except in limited dicta. While the notion of a property right in the underlying goodwill of a business is uncontroversial, the question of whether a person's name or other indicium of his personality may be considered a part of his property in the goodwill of a trade or profession poses greater difficulties. In this respect the Australian courts have been far more willing than their English counterparts to interpret the core elements of the tort of passing off flexibly, thus broadening the notion of property in goodwill.

A more fundamental issue is whether the courts can recognise a right of property which lies beyond the notion of goodwill in a business or profession. In the United States protection was initially secured from another direction, through the right of privacy, which, as originally conceived, protected essentially dignitary interests.