Throughout legal history, each successive extension of rights to some new entity has been, theretofore, a bit unthinkable.
Christopher D. Stone1
Ads and logos often feature animals, including members of endangered species. Meanwhile, extinction rates are climbing and resources devoted to conservation are insufficient. Extending the right of publicity — which protects people’s names and likenesses against unauthorized commercial use — to endangered species could help capture some of the value exploited by advertisers, preventing the private appropriation of endangered species’ publicity value and increasing funding for conservation. Though this proposal may sound far-fetched, such an extension would fit neatly within the justifications for the right of publicity and would be more administrable than it might initially appear.
This Note proceeds as follows. Part I highlights the extent of use of animal imagery — including imagery depicting endangered species — in advertising and argues that this use harms rather than benefits the animals depicted. Part II argues that this gap can be closed by extending the right of publicity to endangered species, contends that this is an appropriate extension of the right, and explains how this could work in practice. Part III addresses a few counterarguments.
I. Background
A. Animal Advertising
Use of animal imagery in advertising and branding is widespread. To look at just a few contexts, a 2000 study found that over fifteen percent of 1990s Super Bowl advertisements contained animal imagery,2 and a 2008 study found that almost twenty percent of a sample of viral advertisements contained such imagery.3 U.S. advertising spending was estimated at over $322 billion in 2024;4 if approximately one-fifth of ads contain animals (and assuming that such ads do not cost significantly more or less than others), advertisers spend over $57 billion annually on advertisements featuring animals. Animal depictions take many forms5 and may symbolize a generally desirable value,6 stress some connection to the product,7 or entail seemingly arbitrary mascots.8 Though most animal advertising uses domesticated animals,9 wild animals (especially “charismatic megafauna” — where charismatic means “attracting or appealing or preferred”10 — almost all of the most charismatic of which are endangered) are also featured extensively in marketing.11
This use, like most or perhaps all advertising,12 is carefully calibrated to encourage viewers to purchase whatever is being advertised. Use of animal imagery in advertising may help sell things for several reasons.13 Research suggests that: people appreciate animals as sources of “inspiration, entertainment, and learning”;14 people find animals more trustworthy than humans;15 animals grab viewers’ attention (presumably better than do other subjects); use of specific animals may “dictate the qualities associated with the” thing advertised;16 animal imagery is associated with a product’s being “green”;17 animals allow advertisers to create characters and rely on stereotypes without risking offense;18 and animals “can be used to transfer desirable cultural meanings to products.”19 As a bonus, animal advertisers do not need to pay and work with human spokespersons.20
Whatever the mechanism, using animals appears to work. (If it did not, the practice would presumably not be so extensive.) Marketing studies have found that animals in ads can make a brand more likeable and memorable, make consumers more likely to buy,21 and attach “a specific intended meaning to a brand.”22 One study found that the presence of animals (including “frogs, monkeys, lobsters, cheetahs, goldfish, Dalmatians, and more”23) was the second-strongest predictor of Super Bowl ads’ likeability, after only “humor.”24 Advertisers that use animals thus appear to derive significant benefit from doing so.
B. The Biodiversity Crisis
Outside of the world of advertising, things are not going as well for wildlife. Since 1970 — the beginning of the “environmental decade”25 and of major environmental lawmaking generally26 — vertebrate populations have declined sixty-nine percent on average.27 Biological research indicates that the earth is in or at the beginning of its sixth mass extinction (this one caused predominantly by human activities),28 with estimates ranging from dozens of extinctions per day to 30,000 per year.29 Present extinction rates are “1,000 times higher than natural background rates of extinction and future rates are likely to be 10,000 times higher.”30 Overall, an estimated twenty-eight percent of assessed species31 and over one million species total32 currently face extinction.
Direct drivers of extinction and biodiversity decline include climate change, habitat conversion and fragmentation, pollution, overexploitation (for example, overhunting and -fishing), and the introduction of invasive species.33 These are in turn driven by human consumption practices, which both require substantial resources (such as land and water) as inputs and generate substantial externalities (such as carbon emissions and other pollution) as outputs.34 Existing legal regimes have failed to address these issues and stem the tide of species decline.35
To be sure, the inadequacy of responses to this crisis is largely if not primarily due to a lack of political will.36 But insufficient funding also limits the ability of even committed governments and private sector actors to protect biodiversity,37 and the (real or perceived) short-term cost of mitigating human environmental impacts contributes to the lack of political will.38 Overall, there is an estimated biodiversity financing gap of between $598 billion and $824 billion per year globally.39
C. The Problems with Animal Advertising
Despite providing significant value to advertisers, wildlife receive little in return. There is no obligation for companies using animals in their advertisements to give anything back. The uncompensated use of endangered species in advertisements is arguably bad in three ways.
First, it is potentially a form of greenwashing40: businesses using wildlife in advertising profit from consumers’ pro-environment or -animal sentiments without necessarily behaving in a pro-environment or ‑animal way themselves (and most likely having harmful environmental impacts overall41). Greenwashing harms both consumers and the environment. It harms consumers by causing them to buy (often more expensive) products they otherwise might not.42 It has negative environmental effects insofar as it makes it more difficult for consumers to identify and purchase products that are actually environmentally preferable, in turn making it less likely for such products to succeed in the marketplace.43 Animal advertising may have similar effects. A 2020 study found that, for products presented as “green,” “animal-form anthropomorphic images could trigger a more positive consumer response” than human images alone.44 Consumers might similarly think that products marketed with animals are in some way more “green” than others, even though this would be in many cases untrue.
Second, and maybe worse, that people see certain endangered species so much in advertising may cause them to overestimate those species’ numbers in real life, reducing interest in and calls for their conservation. In 2018, researchers found that people are “often unaware of the dire conservation status of most of” the most “charismatic” species.45 The researchers noted that the species’ popularity might make people think of them as more common than they really are: “[T]hese animals may be assumed to be abundant because of their omnipresence in our culture.”46 This “masks the[se species’] real, high extinction risk,” potentially “prevent[ing] conservation efforts from getting the necessary support.”47
Third, even if it does not create these tangible harms, the uncompensated commercial use of animal imagery should be considered a moral wrong in a deontological sense: advertisers making such use exploit the evident publicity value of the animals used, extracting this value from the animals without returning any of what is gained — all while, in the case of endangered species, human activity threatens the animals’ continued existence.48 This dynamic is similar to that addressed by the law of unjust enrichment: one party (the advertiser) enriches itself at the expense of another (the species depicted) through a nonconsensual transaction.49 Even if one is skeptical that animals themselves have any claim over the use of their likeness, it can be argued that animal advertisers are appropriating, for purely private gain, a shared resource50 that should be used only for public benefit.51 Either way, an advertiser that uses an animal image without compensation is “reap[ing] where it has not sown”52 — and where it (or its fellows) is salting the earth.
Others have proposed righting this wrong through voluntary means — that is, by encouraging animal advertisers to pay to support conservation.53 While a voluntary approach might be more immediately palatable,54 efforts to take such an approach have proven insufficient — not only as evidenced by the continued decline of wildlife populations, but also on their own terms. In 2018, for instance, the United Nations Development Programme launched The Lion’s Share, an initiative that “asks major advertisers to contribute [to a conservation fund] 0.5 percent of their media buy for each campaign featuring an animal.”55 The fund aimed to raise $100 million within three years,56 but as of December 2021, had raised less than $6 million total.57
To be sure, some companies may independently choose to fund conservation of species they use in marketing or branding. For instance, Pacific Life (which features a humpback whale in its logo) has a foundation that has “committed” to donating the equivalent of $500,000 per year.58 These activities may be commendable and certainly are better than nothing. But contributions may be made once, promoted extensively, and then forgotten, while use of the animal continues.59 Moreover, the magnitude of these contributions may pale in comparison to conservation needs and to the value extracted by the contributing companies.60 Ultimately, efforts to get animal advertisers to pay voluntarily for the use of animal imagery have not succeeded.
II. A Right of Publicity for Endangered Species
The right of publicity describes the “right of every human being to control the commercial use of [their] identity.”61 State right of publicity laws vary widely in terms of what people and what aspects of identity are covered and from what, but they generally protect against the unauthorized commercial use of one’s persona.62 Though the right grew out of the right to privacy (specifically, Warren and Brandeis’s public disclosure of private facts63), it crucially expanded it by allowing plaintiffs who could not meaningfully claim an interest in privacy — primarily celebrities — to sue regarding unauthorized commercial use of their likeness.64 First invoked in a 1953 case involving the use of a baseball player’s likeness on chewing gum cards,65 the right was propounded the next year in an article by Professor Melville Nimmer;66 after further judicial and scholarly percolation in the 1950s and 1960s,67 interest in and support for it took off in the 1970s,68 and by 2020, thirty-five states recognized either a statutory or common law right of publicity.69
Extending the right of publicity to endangered species could benefit these species by allowing them to capture their publicity value. Under this approach, covered species would have a right in their likeness and trustee organizations would license the use of this likeness and use the funds for the species’ conservation. This Part argues that it would be appropriate to extend the right to endangered species in this way, then provides more detail on the form that such an approach could take.
A. Extending the Right of Publicity to Endangered Species
As discussed, it is apparent that animals (including endangered species) have significant publicity value. Indeed, in his germinal article on the right of publicity, Nimmer noted that it “is common knowledge that animals often develop important publicity values”70 and referred to the fact that privacy rights are limited to humans as an “inadequacy” of privacy and a reason a separate right of publicity was needed.71 The right of publicity protects one’s ability to control and profit from commercial use of their likeness. It is thus logical to extend it to endangered species, which have publicity value they are unable to capture.
Of course, some courts and commentators are unconvinced. Though no case has squarely addressed whether animals could enjoy a right of publicity, two have declined to extend them privacy rights.72 In one, a New York trial court held that the “statutory right of privacy” “does not cover the case of a dog or a photograph of a dog.”73 In the other, the Supreme Court of Missouri reversed a jury verdict awarding damages to the owner of a horse whose picture the defendant had used in an advertisement, holding that the photo did not invade the plaintiff’s privacy.74 And some scholars have argued against such an extension. The following sections respond to several actual and potential objections.
1. The Right of Publicity as Protecting Remuneration vs. Control. — Most fundamentally, one might argue that the right of publicity is not (or should not be) meant as a means by which one protects their likeness’s commercial value, but rather a right to control one’s public image — and species have no right to or interest in such “autonomous self-definition.”75 Some scholars, for instance, assert that the right of publicity has the “basic rationale of a natural right of every human being to control commercial uses of human identity and persona.”76 Others similarly justify (or at least explain) the right on this ground.77 But the right of publicity can just as well be construed as protecting the right to benefit from the use of one’s identity, with control merely a means of ensuring beneficial use (rather than an end in its own right), and scholars acknowledge that the right is commonly considered to serve this interest.78 This Note’s proposal is consistent with this conception of the right of publicity: as preventing advertisers from unjustly enriching themselves by “commercially employ[ing] a plaintiff’s identity without having paid the market rate to do so.”79
The protection of postmortem publicity rights illuminates this distinction.80 The protection of publicity rights after the death of the person whose identity is protected follows from the proposition that — unlike privacy rights, which are personal rights that protect against “invasion of human dignity and resulting mental and physical suffering” — the right of publicity can be construed as a property right that “protects against infringement of the commercial value inherent in a human identity.”81 This in turn indicates that the right of publicity regards beneficial use, rather than control for its own sake: if the right protects “commercial value,” its purpose is to ensure that rightsholders earn the full commercial value of their identity — not to ensure that they control their identity for dignitary or other intangible purposes.82
If the right of publicity were used only to protect control, it would make no sense to allow a deceased celebrity’s estate or heirs to assign or license the celebrity’s publicity rights, at least not without requiring some sort of instruction from the deceased or limiting postmortem rights to those who knew the deceased well.83 Examples abound of estates or other postmortem rightsholders (or even guardians of still-living celebrities) authorizing uses of a celebrity’s identity or other intellectual property of which the celebrity may not have approved.84 But if one considers the right as also or sometimes ensuring compensation, protecting it postmortem makes sense, as it allows celebrities’ heirs to continue to reap the rewards of their ancestors’ publicity value.85
Even before the advent of postmortem rights, support could be found for this view of the right of publicity. Nimmer’s article can be read as supporting beneficial use over control. To be sure, Nimmer notes that a celebrity wishing to invoke the right wishes to protect the use of his identity “without his consent or without remuneration to him.”86 But consent and control appear to be useful as means of ensuring acceptable remuneration: Nimmer defines the publicity value discussed throughout the article as a “pecuniary value,”87 control is consistently mentioned alongside profit,88 and other passages imply that the payment is really what matters.89 Many courts have indicated similarly.90
And if the right of publicity is understood as protecting commercial value, not control (as a means of protecting autonomy or dignity), there is no reason for it to be limited to humans. In sum:
If misappropriating the monetary value of one’s unique identity without consent or compensation is instinctively unfair, then why, it might be argued, is it any less reproachable when the victim is non-human? Similarly, if the interest protected is the objective commercial value of a person’s identity as set by the market . . . then why is such a loss any less deserving of a remedy when sustained by, for example, a corporation?91
2. Arguments Applicable to Individual Animals but Not to Entire Species. — Admittedly, Nimmer wrote that “the human owners” of “non-human entities” such as animals should hold the publicity rights,92 and gave Lassie as an example of an animal with publicity value.93 Nimmer and others considering the issue thus appear to be addressing the extension of publicity rights to individual animals with human owners.94 There does not appear to have been a serious scholarly argument in favor of extending publicity rights to entire populations or species. If anything, though, there is an even stronger argument for doing so. Like individual animals, species have publicity value — that is, there is a “pecuniary value” in the “use of [their] name, photograph, and likeness.”95 And several of the arguments against extending the right to individual animals do not apply or apply with less force.
For instance, McCarthy and Schechter note that the “human owner of a pet or animal actor has available remedies other than the right of publicity. In a given case of unpermitted use, the human owner may well obtain satisfactory redress through assertion of the remedies of copyright infringement, trademark infringement, or false advertising and false endorsement principles.”96 It is true that unauthorized uses of famous individual animals, mascots, or objects could possibly be redressed through false endorsement claims under § 43(a)(1)(A) of the Lanham Act.97 If an advertisement recognizably features Mr. Ed or Lassie such that viewers think Mr. Ed or Lassie (or their owners) have sponsored the product being advertised, that might well be the basis of a cognizable Lanham Act claim.98 And perhaps certain uses of famous animals may be covered by copyright law.99 But these means are unavailable to species — it is implausible that anyone would think polar bears have sponsored or endorsed Coca-Cola, or tigers Frosted Flakes. And there is no copyright protection for the generalized likeness of a panda bear. The right of publicity should thus seem more attractive as a means of allowing species to capture their publicity value.100
That false endorsement claims and other alternatives are unavailable to species also addresses another objection contemplated (if ultimately discarded) by McCarthy and Schechter: namely, that there is no principled reason to draw the line between animals and (for instance) corporations, such that extending the right of publicity to animals could send the right down a slippery slope and result in all manner of entities having publicity rights.101 But the fact that no other means are available to species102 provides exactly such a principled reason.103
3. Arguments Applicable to Entire Species but Not Individual Animals. — Two arguments against extending the right of publicity, however, apply more strongly (if not uniquely) to an entire-species extension.
First, one justification for the right of publicity is that, in addition to (or even instead of) merely protecting against the uncompensated appropriation of one’s identity, it protects and incentivizes one’s “investment” in their identity — the time and effort that have gone into building the personal “brand” that makes an identity valuable.104 It is true that species’ publicity values do not spring from any particular expenditure of labor. But in practice in several states, the right of publicity is already not limited to such cases. The likenesses of non- and incidentally famous people are regularly protected,105 even where private parties might be able to recover for violations of their privacy rights. The fact that one’s identity is used would seem to show that the identity has commercial value;106 to the extent that a private person’s likeness is less valuable, they might simply recover less in damages.107 Therefore, the right of publicity should not be denied to species on the grounds that their publicity value is not the result of any effort by the species.
Second, extending the right of publicity to endangered species would entail providing the right to groups, rather than individuals. The right of publicity has only been extended ever so slightly beyond individual people, and right of publicity statutes “typically grant protection to the name or picture of a ‘person,’” seemingly excluding groups.108
The main policy objection to a group right of publicity seems to be that such a right would overwhelm trademark law (which can already protect against unauthorized uses of aspects of group identity such as corporate names or logos).109 But this argument is inapplicable to species, which, as discussed above, cannot make use of trademark law or other Lanham Act causes of action to protect their publicity value.
Moreover, several courts have found that the right of publicity protects musical groups.110 The court in Bi-Rite Enterprises, Inc. v. Button Master111 reasoned as follows in doing so:
[The right of publicity] protects the persona — the public image that . . . imbues [one’s] name or likeness with commercial value marketable to those that seek such identification. A group that develops market value in its persona should be as entitled as an individual to publicity rights in its name. The rationale for protecting the right to publicity does not justify treating similarly situated plaintiffs differently merely because one is an individual and one is a group member.112
The same could be said of groups of animals — their personas have market values and they are as entitled as individuals to their publicity rights. And like many musical groups, the value of a given depiction of an endangered species comes from its being a member of that species. Coca-Cola does not use the image of a specific polar bear because it is a specific polar bear, but because it is a member of the polar bear species. That extending the right of publicity to endangered species would create group rights thus should not pose a problem.
Therefore, extending the right of publicity to endangered species could benefit species and would comport with the right’s justifications.
B. Operationalizing a Right of Publicity for Endangered Species
Of course, even if one is inclined to agree that endangered species should benefit from the exploitation of their publicity value, there are several practical questions regarding the actual implementation of such an extension of the right of publicity. This section explains what a right of publicity for endangered species might look like. Overall, the right should be enacted by statute and limited to endangered and threatened species, and publicity rights should be controlled and licensed by environmental organizations acting as trustees of covered species. Moreover, the right should cover recognizable depictions of any genus containing endangered species and should not cover noncommercial uses.
1. The Right of Publicity Should Be Limited to Endangered and Threatened Species. — The right of publicity should be limited to endangered and threatened species as listed under the Endangered Species Act113 (ESA) by the Fish and Wildlife Service and National Marine Fisheries Service,114 as well as species for which it has been determined that listing is warranted.115 (Hereinafter, all covered species are referred to collectively as “endangered species.”) This limitation has three benefits: it ensures that the right’s coverage is sufficiently broad; it ensures that the right’s coverage is not overly broad; and it is easy to administer.
First, pegging the right of publicity to species’ ESA listing status ensures that the species most in need of protection (and thus of funding for conservation) will receive remuneration for the use of their likenesses. Moreover, insofar as charismatic megafauna are both at a high risk of extinction116 and generally more likely than other wild animals to be used in advertising,117 limiting the right of publicity to endangered species may also serve as an effective proxy for addressing those situations where an advertiser is appropriating the greatest value.
Second, limiting the right of publicity to endangered species ensures that the right of publicity will not be overextended or suppress speech where there is no good reason to do so. A right of publicity that prevents the uncompensated use of dogs and cats in a commercial for pet food, or of rats and roaches in a commercial for pest control supplies, would hinder attempts to advertise useful products without comprehensibly furthering conservation goals.118 Even where applying the right of publicity would arguably further conservation, there is relatively little to be gained from requiring Energizer to pay for rabbit conservation or (were it still extant) Gateway for cows, given that these species are not at risk of extinction. Endangered species, on the other hand, are by definition at risk of extinction and thus have the most to gain from — and the most need for — funding of their survival, justifying limits on their use.
Third, defining the extended right of publicity with reference to endangered species is the easiest way to extend the right without over- or underextending it. Because endangered species listings are made on the basis of a “scientifically rigorous process”119 and the “best scientific and commercial data available,”120 it can be assumed that any listed species is indeed at risk of extinction and thus would benefit from additional funding. And to the extent that there are endangered species with limited publicity values, it would seem that these species would most likely not be used in advertising and, if used, could simply command relatively little in licensing fees or damages121 — in other words, that is no reason to let them be used freely. Developing a separate method for determining which species most need to benefit from their publicity value would thus be redundant at best and more likely over- or underinclusive.
2. The Right Should Protect Both Names and Visual Depictions of Endangered Species and Should Protect Against Uses of “Generic” Versions of Endangered Species. — The right of publicity for endangered species should apply to visual depictions of a species and uses of its name, as both have publicity value.122 Whether a visual representation like a stylized logo sufficiently clearly depicts an endangered species to constitute a use of the species’ likeness should be a question of fact.
Though only endangered species should be able to make use of the right of publicity, the right should also protect against depictions of animals that clearly resemble some member of a taxon within which some species are endangered, even if the depiction is not specifically identifiable as an endangered species.123 Froot Loops’s mascot, Toucan Sam, shows why. He is clearly a toucan; the word is part of his name. But he does not seem to be any particular species of toucan. The colors on his bill instead correspond (roughly) to the colors of the cereal.124 And yet several species of toucan are at risk of extinction.125 If the right of publicity for endangered species only protected against commercial depictions that were clearly of a specific species, toucans would receive no benefit from Froot Loops’s appropriation of their publicity value, notwithstanding the mascot’s wide use. Indeed, any advertiser wishing to use animal imagery without paying for it would need only to tweak an animal’s features or combine features of two similar species; or could, for instance, use the name “grizzly” and just claim that they were referring to populations other than the threatened126 population in the continental United States.127 Thus, for a right of publicity for endangered species to work, it must protect against the depiction of animals identifiable as members of taxa containing endangered species.128
The genus is likely the best level at which to peg the right. As noted, protecting specifically against depictions of a member of a species would render the right a nullity. On the other hand, protecting against depictions of any member of a family within which some species are endangered would likely be too broad: the family Felidae, for instance, includes not only the tiger and lion but also the house cat.129 An advertisement featuring only a house cat would not appear to be appropriating the publicity value of a tiger, so preventing this use on that ground would not advance the purposes served by extending the right. Whether a depiction is identifiably using the likeness of a member of a genus containing endangered species should be a question of fact.
Finally, there should be an affirmative defense for advertisements that clearly depict nonendangered members of genera that contain endangered species. Advertisers that feature what are clearly not endangered species cannot be said to be appropriating the publicity value of any endangered species. For instance, an advertisement featuring a golden retriever is obviously not appropriating the publicity value of the endangered Simien fox, which is also within the genus Canis.130 This defense would thus help ensure the right of publicity for endangered species does not creep past its core purpose of preventing appropriation of the publicity value of species that most need help.131
3. The Right Should Be Administered by Environmental Nongovernmental Organizations. — Perhaps the greatest practical question regarding the extension of the right of publicity to endangered species is who would license species’ likenesses and sue over unauthorized uses. These functions should be served by environmental nongovernmental organizations (NGOs) acting as stewards for species they represent. The NGOs would then also be responsible for spending the funds on conservation.
Such relationships are common in the law. Courts regularly appoint guardians and conservators to protect and advocate for the interests of minors or others deemed incapable of making their own decisions.132 Though state guardianship laws and procedures — including court oversight practices — vary,133 overseeing such relationships is a common judicial function, with an estimated 1.3 million adults and $50 billion in assets under supervision in 2016.134
Similar structures should be used with respect to endangered species’ rights of publicity. Others have proposed using these relationships to allow natural objects to sue on their own behalf: in his famous article Should Trees Have Standing?, Professor Christopher Stone proposed a system wherein “friend[s] of a natural object” could “apply to a court for the creation of a guardianship,” after which an environmental NGO such as the Sierra Club could be appointed to represent that object’s interests in court.135 More importantly, such structures have been actually established: in 2017, the New Zealand Parliament granted the Whanganui River legal personhood, giving it the right to sue and be sued, and vested responsibility for enforcing its rights in Te Pou Tupua, a two-person guardian entity.136 The same year, an Indian court effectively granted legal personhood to the Ganges River and ordered the state to establish a board to keep it clean (though the Supreme Court of India reversed).137
The right of publicity for endangered species should be similarly entrusted to an NGO. As Stone noted, there are many environmental NGOs that would likely be willing and able to assume such responsibilities. Given their conservation expertise, they would know how best to spend the acquired funds and would be well positioned to negotiate appropriate rates for different species.138 Just as courts assign guardians to humans who need them, so could they assign guardians to endangered species. Appointed guardians should be required to report on their activities — including licensing, lawsuits, and use of funds — so courts and the public can monitor performance and replace underperformers.
4. The Right Should Not Apply to Noncommercial Uses as Defined by First Amendment Law. — The right should not apply to noncommercial use of the name or likeness of an endangered species. As discussed, the right of publicity aims to prevent the unauthorized and uncompensated appropriation of the commercial value of one’s likeness. A book or movie that features an endangered species is most likely not using that species for its commercial value, but for expressive purposes, whether to create a situation that advances the plot,139 make a story appeal to children,140 or even bring attention to the biodiversity crisis.141 Extending the right of publicity to these uses would restrict expression without the justification of preventing commercial misappropriation.
Thus, like the statutory rights of publicity of New York142 and California,143 the right of publicity for endangered species should only protect against commercial use of species’ identity, using the definition of commercial speech found in First Amendment law. By this definition, speech is commercial (and treated as less valuable144) if it “does ‘no more than propose a commercial transaction.’”145 Advertisements and logos aiming to sell a separate good or service would be covered, while speech that is itself the product (namely, expressive works) would not be.146
Similarly, on purely policy grounds, the right should not apply to uses by environmental nonprofits, like advocacy groups or zoos.147
5. The Right of Publicity for Endangered Species Should Be Statutory. — State rights of publicity are variously creatures of statute and of the common law. The right of publicity for endangered species should be created by statute — or perhaps more precisely, it would be infeasible to create via the common law. Legislatures, not courts, are positioned to define and oversee the implementation of a program like the one described above,148 which includes such specificities as protecting likenesses at the genus level and requiring reporting of guardian activities.
III. Select Counterarguments
A number of objections might be anticipated. Several — copyright preemption,149 standing,150 takings151 — are beyond the scope of this Note. The following sections, however, address two possible objections.
A. The First Amendment
Generally, rights of publicity have been upheld as consistent with the First Amendment.152 That said, the First Amendment is one obvious potential obstacle to this proposal. A full consideration of the issues it would pose is beyond the scope of this Note. But as Professors Robert Post and Jennifer Rothman note, right of publicity claims rooted in a theory of unjust enrichment (the element of the right of publicity most analogous to the extension proposed here) are, so long as they include fair use exceptions, “likely valid in the context of commercial speech” because they can satisfy intermediate scrutiny: “Although . . . unjust enrichment–based right of publicity claims decrease the amount of information circulated in commercial speech, [they] correspond to deep-seated concepts of commercial propriety, and [they] have substantial precedential support in the history of American commercial regulation.”153 Endangered species are obviously different than people. But there is no clear reason why they would be too different.154
B. Perverse Effects
One possible objection concerns the merits of the proposal: One might argue that, were advertisers required to pay to use animal imagery, they would instead opt not to use such imagery. This would mean that no money would be paid for such use and the funding available for conservation would not increase; moreover, this could actually harm endangered species insofar as they would be less visible, which might result in lowered public interest in and support for conservation.
Ultimately, the degree to which this would occur is an empirical question beyond the scope of this Note. That said, it appears unlikely that advertisers would cease using endangered species altogether — advertisements regularly feature celebrities and other human actors whom they must pay. But even if a right of publicity for endangered species were to have some slight perverse effect on some advertisers, that effect may be outweighed by the benefits the right would provide by forcing payments from other advertisers. Plus, if advertisers stopped using endangered species, that might serve to counteract the dynamic via which people overestimate the abundance of endangered species because of the species’ prevalence in “virtual” settings such as advertisements and movies.155 Moreover, even if there were to be a slight net perverse effect in consequential terms, it might be argued that the right of publicity for endangered species would still be justified deontologically insofar as it would prevent the misappropriation of species’ publicity value.156
Conclusion
Earth and its ecosystems are in the middle of a mass extinction and a biodiversity crisis. At the same time, firms derive significant value from the use of wildlife imagery in their advertisements and do little to return the favor. Extending the right of publicity to endangered species would help direct much-needed funding to conservation and would prevent the misappropriation of endangered species’ publicity value.
The best objection to this proposal is perhaps “simply that [it] is a fraud — a contrived, pie-in-the-sky gimmick.”157 But big problems require big solutions, and dealing with climate change and other looming environmental collapses will require fundamentally rethinking human interactions with the natural world.158 Giving endangered species a share of their publicity value is perhaps one small step in that direction.