Results tagged “Right of Publicity”

December 5, 2012

rothman2.jpgProfessor Jennifer Rothman's "The Inalienable Right of Publicity" was discussed on the Credit Slips blog. Below is an excerpt from the discussion:

A quick post to announce that intellectual property scholar Jennifer Rothman has just published an article that engages with the bankruptcy treatment of the "right of publicity." Painting with the broadest brush, the piece questions the alienability of an identity-holder's right of publicity more generally, and concludes creditors should not be entitled to "own (or control)" a debtor's right of publicity (p.236). For the bankruptcy and commercial lawyers reading this post, or courts confronting questions of creditor entitlement to a debtor's right of publicity, the article contains references to recent court decisions of potential relevance (pp. 199-200) in addition to important arguments on these questions. According to Rothman, there still is no published caselaw explicitly holding that creditors are entitled to the value of a bankruptcy filer's right of publicity.

Read the complete discussion.

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March 3, 2011

By Professor F. Jay Dougherty

Jay Dougherty

Recently there have been reports that the Tolkien estate has fired off cease and desist correspondence to Steve Hillard, the Texas-residing author of a self-published book called Mirkwood. Mirkwood is apparently a fictional work, perhaps Tolkienesque, in which J.R.R. Tolkien is a character. It appears that the gist of the assertions (which are reportedly asking that the book be enjoined and destroyed) is that it is an unauthorized commercial exploitation of Tolkien's name and likeness; in other words, a violation of his rights of publicity. This claim seems extremely weak, and it's surprising that it would even be asserted.

First, the decisional law and many statutes have pretty clearly established that one doesn't have a property right in his or her life story. The same can be said as to fictional works including a "real" person as a character, at least if they are not held out as being true (and even the small line of cases drawing that line are questionable). Some plaintiffs have argued that a work that has nothing to do with the person whose persona is used becomes a "commercial exploitation" of that persona. But books, films, songs, works of art, etc. are not the same as T-shirts and coffee cups. They are works of expression--speech protected under the Constitution. (A football videogame is currently being challenged, in part on an assertion that it is just a product, not "speech." See my colleague Jennifer Rothman's recent post about oral argument in that case.) Courts in different jurisdictions have used various approaches to address tension between the relatively new right to control commercial uses of persona that are not false endorsements. Most of those approaches should favor almost any expressive use that is not an advertisement pure and simple, although one of them---the most antagonistic to freedom of expression---looks at the elusive "primary intent" of the expressive defendant. The "Mirkwood" book doesn't appear to be being held out as true, and appears to be highly expressive and "transformative" (one of the tests applied in this context). The Tolkien estate should lose on that basis.

But their claim is weak for at least two other reasons. First, many states' laws, especially covering a right of publicity after the death of the person portrayed, expressly exclude from liability speech works such as books or films. In fact, if the estate were to assert the application of Texas law to this dispute, that law has such an exclusion: "A person may use a deceased individual's name, voice, signature, or likeness in: (1) a play, book, film..." Texas Property Code Section 26.012. But the dispute may not even have to reach that clear defense. The majority rule as to whether the right of publicity survives death is to look to the law of the state of domicile at the time of death of the celebrity. Mr. Tolkien lived in England when he passed away in 1973 (long before the descendible right of publicity was officially recognized in most states). England does not recognize a right of publicity, let alone a descendible one that survives death. See, e.g., Cairns v. Franklin Mint, 292 F.3d 1139 (9th Cir., 2002) (Princess Diana domiciled in England at time of death--no right of publicity claim under California deceased celebrity statute) (note that decision also affirmed a $2 million+ award of attorneys' fees to the defendant). Hence, a Texas court, if this dispute were to get that far, should toss this claim out at an early stage on a similar basis, too.

We all love Tolkien and his imaginative books. I loved the books and the films, and can't wait for the new The Hobbit films, in production now. I happily pay for them, and will continue to do so. He was a genius, and his heirs deserve to benefit from that. But he is also iconic and forever intertwined with certain types of fantasy literature. That he is now a character is such a work should be celebrated--not threatened with Sauronian attacks and destruction!

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February 15, 2011

Jennifer Rothman

By Professor Jennifer Rothman

Today the Ninth Circuit will consider a First Amendment defense to Electronic Arts' (EA) use of former and current college players' identities in a popular video game. The case once again raises the issue of a conflict between the First Amendment and the right of publicity - a state law that protects the name, likeness and other indicia of identity of a person from being used without consent. Because this right limits what others can say, or put in a comic book, or a commercial or even a news broadcast, it raises a host of First Amendment issues. In particular, the district court held that EA had no First Amendment defense because the use of the players' identities was not transformative. The district court adopted a very narrow reading of transformativeness - one that appears to limit a First Amendment defense to circumstances in which a player's appearance and information is significantly altered, such as turning a player into a "half-human, half-worm," as one comic book did with the identities of two well-known musicians.

It is no surprise that such a narrow reading of transformativeness in the right of publicity context has caused uproar among major newspapers, television networks and movie studios. If courts do not consider the broader context of the use in a transformativeness analysis, then realistic portrayals and references to athletes, celebrities and anyone else may not receive First Amendment protection.

As a First Amendment matter, the transformativeness test seems ill-equipped to handle disputes between free speech and the right of publicity; the narrow gloss that the district court put on transformativeness sets a dangerous precedent that the Ninth Circuit will hopefully strike down. But whatever test the circuit ultimately adopts, it's not clear that EA has a great First Amendment defense. In contrast to the fantasy sports leagues, which are tied to the performance of actual players during a particular season, the EA video games do not need to be linked to particular players' identities. They may be more successful commercially if they are, but the functionality of the games does not depend on their realism.

This case on remand, however, may not ultimately turn on First Amendment protections. Although many of the briefs in the case focus on alternative First Amendment tests that could be used - other than transformativeness - to evaluate free speech limits on publicity rights, there are other significant conflicts in the case that have not yet been litigated. Related cases reveal that the college athletes signed their publicity rights over to the NCAA. Moreover, the NCAA owns the copyrights in the televised games. The NCAA therefore arguably had permission to license the use of the images and names of the college athletes. The legitimacy of the implicit and explicit assignments of publicity rights to the NCAA by college athletes will likely be the next chapter in this on-going and hotly contested dispute.

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