Entertainment Law – Spring 2016
Professors Duitsman and McGee
Right of Publicity
A creature of state law:
Statutory law, common law, or a mixture of both.
State intellectual property law based in tort.
The right to control publicity about you.
Disclaimer up front: Right of publicity law is “all over the place.” Do not try and reconcile different jurisdictions’ holdings.
Many inconsistencies between jurisdictions.
Evolved from privacy law
Since there were no statutes in existence, it remains a largely judge created doctrine.
Rationale:
An individual should control the commercial value of her own identity.
Prevent unjust enrichment of those who seek to appropriate that value.
Preserve the vale by preventing harmful or excessive commercial use.
Key Elements:
1. Appropriation of an individual’s name, likeness, or other indicia of that individual. The individual must be identifiable from the use.
2. Without consent
3. For commercial purposes
What is an individual’s “likeness or identity?”
Name, voice, likeness, photograph, persona, catch phrase, character played in a movie or television, stance/pose (particularly for athletes), or anything that brings a celebrity to mind.
What is a commercial use?
Think of a continuum
Advertisement (purely commercial) à Reporting (purely informative)
Robertson v. Rochester Folding Box Co.
Holds no interest exists in a person’s name or likeness.
The woman on a flour mill advertisement sues for mental distress.
The New York legislature passes a statute in response, creating the essence of the right of publicity: essentially a right to “hurt feelings.”
Pavesich v. New England Life Insurance Co.
A man sues over the use of his likeness in an insurance ad in the Atlanta Journal Constitution.
Georgia Supreme Court says the defendant violated plaintiff’s common law right of privacy.
Psychological harm and injury
This made right of publicity an offshoot of tort law.
But this could lead to frivolous suits.
O’Brien v. Pabst Sales Co.
Involved a PBR calendar. An athlete’s photograph sat side-by-side on the calendar with a glass of PBR.
The Fifth Circuit said there was no right to privacy when O’Brien promotes himself in other avenues.
O’Brien cannot say his “feelings were hurt,” when he boosted his image by promotion.
Furthermore, the calendar did not explicitly say O’Brien endorsed Pabst Blue Ribbon.
This case made it hard for a famous person to claim his identity was being harmed based on the right of privacy (on which other jurisdictions relied)
Result: a famous sports figure like Babe Ruth did not get rights to his image.
Haelan Laboratories, Inc. v. Topps Chewing Gum
Beginning of the modern right of publicity.
The right of publicity implicates economic interests.
Martin Luther King Jr. Center for Social Change v. American Heritage Products
The King estate files suit over a plastic sculpture of Dr. King.
Dr. King was not an elected official or celebrity, but a prominent public figure nonetheless.
Distinguishes the right of publicity from privacy:
Misappropriation does not involve taking something secret, but using the image for economic gain.
Public figures (and everyone) holds a right of publicity.
Recognizes the right of publicity as distinct from the right of property.
Important note:
In New York, the right of publicity is statutory only.
Limited to statutory language
In California, the right of publicity comes from statute and common law.
Common law may expand from the statutory definition of right of publicity.
Balancing the right of publicity with the First Amendment
King concurrence:
Felt the majority’s holding threatened free speech.
Almost all expression, at some point, involves money.
Parade of horribles argument – would we punish a student who writes an essay about Dr. King and then wins money in a local contest?
Espouses an “unconscionable use” standard as opposed to a financial gain standard.
Parks v. LaFace Records
Outkast song “Rosa Parks.”
There’s no use of Parks’ name in the lyrics.
Park found Outkast’s song offensive.
The Sixth Circuit reversed a grant of summary judgment to Outkast.
A factual question exists. The jury must determine if the use of Parks’ name was necessary to the artistic message or meaning of the song.
The case settles out of court.
Professors say this remains an important lesson in trial practice. You do not want Rose Parks sitting at the other table in court.
Argument #1: Outkast named the song “Rosa Parks” to attract attention to the song.
Argument #2: While Outkast will reap financial gain from the
Polydoros v. Twentieth Century Fox
Book and movie utilize the nickname “Squints.”
Authors draw upon their real life experiences and create stories deriving from them.
Twist v. TCI Cablevision
The Spawn comic book uses the name of NHL player Tony Twist.
Spawn created much merchandise (film, toys, etc.).
Missouri uses the predominant use test.
Was the use primarily commercial or creative?
The Missouri Supreme Court finds for Tony Twist.
Johnny Carson v. Here’s Johnny Portable Toilets, Inc.
Defendant made porta potties. Johnny Carson sued for trademark and exploitation of identity.
The district court dismissed the claim saying “Here’s Johnny” is a common phrase, and did not implicate Carson’s name or likeness.
The court of appeals reversed, relying heavily on Motschenbacher v. R.J. Reynolds Tobacco Co.
In that case, a cigarette ad did not use a racecar driver’s name, but used his distinctive car.The ad changed the car’s number and hid the driver’s face.
The court held this exploited Motschenbacher’s identity. The car in the advertisement still brought the plaintiff to mind.
Why protect Carson’s right of publicity in this case?
His hard work made him famous. He deserves to benefit from the monetary value of his identity.
This inspires and encourages citizens to work and cultivate their images.
This is a policy rationale which harkens back to the Zacchini case.
Dissent: “Mere association:” We should not extend the right of publicity to simple phrases “merely associated with a celebrity.”
Carson himself does not say “here’s Johnny.” If a claim even exists, it belongs to Ed McMahon (who said the phrase at the beginning of every episode).
It remains a common introduction.
The defendant does not “rob” any credibility or value from Carson. If anything, Carson receives a windfall. He now “owns” a phrase he did not create.
