Right of publicity workshop at Yale

Right of Publicity Workshop
Yale Law School
Information Society Project
Abrams Institute for Freedom of Expression
 
Chatham House rules apparently allow me to disclose my own
participation, but not that of others, so I’ll just take some notes on whatever
catches my ear.
 
Introductory Background Briefs       
1.  Current state(s) of
right of publicity law: background: nonconsensual use of someone’s identity,
sometimes limited to commercial purpose (not commercial speech)
1) The origins of the right of publicity: we have some
mythologies about its development; reality takes us in a different
direction.  Right to privacy origins: we
now think of privacy and publicity as almost opposites—one focused on dignitary
harms/secrecy, other on property.  But
they originate together—the first right to privacy cases in NY etc. were what
we’d now consider prototypical right of publicity cases: Pavesich, etc. Claimed
harm was emotional/dignitary, but information was not private (ordinary photo,
used on ads).  Instinct that person
should be able to control how/when image is used in public, at least for
commercial purposes, exists still.
 
2) Its Evolution: Common story of shift to publicity: actors
etc. wanted to commercialize identities; not injured in dignity, but just
wanted to be paid for use.  More like an
IP right. But this is only part of the story. 
(1) Series of decisions that were, I think, a wrong turn—that public
figures couldn’t suffer privacy harm from use of images w/o permission. (2)
Corporations wanted to take control for themselves of profitable control of
individual identities.  Haelan Labs: Romantic language of
baseball player’s ability to commercialize identity for own well-being, but
this was actually a suit b/t two corporations, both of whom had been given
permission by the baseball player—the case was about which corporation would be
able to control him. Thus movie studios were advocates of ROP at that time—Nimmer
was lawyer for MPAA when he wrote his big article advocating for it.  Maybe movie studios have had cause to regret
this!
 
Zacchini opened the
floodgates by rejecting a 1A defense in the context of a news broadcast. 
 
3) Some Current Contested Places: Many states recognize
misappropriation only; some statutory and common law.  States vary in what’s covered—name, likeness
(Tenn.); + voice (NY); any indicia of identity (Ala.); evokes the identity
(Cal. as interpreted by 9th Cir.); postmortem rights vary widely (NY
none, Ky. 50 years for public figures; Tenn. 10 years unless commercialized,
then forever; Ind. 100 years). Some states allow anyone to sue; others require
commercial value; others require commercial exploitation.  Some who require commercial value assume that
use in commercial context evidences commercial value.  Most states limit to domiciliaries, Wash.
& Haw. don’t.  Some states require
use in ads, but very few. Others: commercial purpose, trade purpose, advantage,
any purpose. Forthcoming article in Georgetown Law about this. Utah limits to
use that rises to the level of false endorsement.  Exemptions also vary: expressive works, news,
sports broadcasts.  Defenses vary too.  Rothman’s ROP roadmap—shocking
level of variation.
 
Contests over evocation of identity; expansion by states in
Ala., S.D.; pending NY law for postmortem rights.  Transferability problems; particularly concerning
that there could be involuntary transfers in bankruptcy, marital dissolution,
NCAA contracts of student athletes.
 
Conflict with © law; elephant in room: conflict w/1A.
 
2.  Introduction to
the current relationship of right of publicity to copyright, trademark and
privacy principles:
 
A.        Preemption:
301 © preemption and conflict preemption. 
Current status: incoherence—some cases find preemption with respect to
core uses of copyrighted works used with authorization from the copyright owner,
at least for film and photos; others do not; the distinctions offered depend on
metaphysical claims that in one instance a copyrighted work is being copied—this
is usually offered as the reason when a court approves a standard nonadvertising
economic exploitation of a full copyrighted work—and in another an
uncopyrightable face or voice is being copied—this is usually offered as the
reason when a court condemns an advertising use or the use of a photograph or
other image; this distinction doesn’t make any sense even in statutory terms,
much less in logic.  §301 preempts causes
of action that fall within the subject matter of copyright, even if they are excluded from copyright protection—for example
a state claim that tried to protect the uncopyrightable facts in a copyrighted
work from copying would clearly be within the subject matter of copyright and
be preempted absent an extra element; by the same logic, a state claim that
tries to protect the uncopyrightable face or voice in a copyrighted work from
copying should also be preempted, absent an extra element such as a false
endorsement.  I have also argued, with
Jennifer Rothman, that conflict preemption is appropriate in many cases, even
if §301 doesn’t apply.
 
Particularly notable because the ROP as accepted in Zacchini is arguably simply common-law
copyright: the relevant question should be who is the owner/author of the
unfixed performance.  Siegel article
makes the point that Zacchini’s harm claim here would be the same if he’d
launched a pig out of a cannon instead of himself: his claim is not a personal,
dignitary one, but an economic one, similar to the dominant US account of ©.  If the common-law copyright reading is
correct, then preemption would be broad, although the issues would then
intersect with the current ferment surrounding performers’ ability to claim
authorship rights in works of performance that they haven’t exactly consented
to being filmed in.
 
B.        Ownership of
creative works/interference with exercise of copyright rights even without
preemption. Question of whether people are any better off when dealing with
large entities or whether contracts are just written more broadly: the right
protects people who made their deals before the right exploded, not afterwards.
 
C.        Incompatibility
of First Amendment defenses/theories between TM and right of publicity: 9th
Circuit cases in which TM claims fail on First Amendment grounds, Brown v. Electronic
Arts, but RoP claims based on the same acts—presence of depictions in a video
game—succeed, Keller v. Electronic Arts, because the RoP case uses
transformativeness as its test.  RoP
broader even though its justification is purely private, as opposed to the
ostensible consumer protection objectives of trademark.
 
Note previous discussion of exemption for “expressive”
works.  1A perspective: Say what? They’re
all expressive.
 
D.        Privacy: in
general something that is truthful and open to the public is fair game, at
least as to well-known figures; right of publicity breaks through the barriers
otherwise used to limit privacy torts’ interference with First Amendment
interests.  Commerciality might be used
as a limit that had an internal relationship to the justification for the
right, but presently it’s not, at least in California. 
 
3.  First Amendment
theories relevant to thinking about right of publicity
 
Strategic point of view: Bias against the visual; not just
from the law—it’s a human reaction. 
Affects willingness of people to approve control—a written work of
fiction is deemed more ok than an image. 
How do you deal with that from a 1A advocacy perspective?  Here, more than in other areas, standard of
review matters enormously.  Reed v. City of Gilbert: enormous
significance.  [I agree, except I also
think w/the concurrences that the Court can’t possibly mean what it says; if it
does, then the 1A is Lochner and
regulation is basically over.  If it
doesn’t, though, we’re in for years of incoherence as it’s applied in some cases
and not applied in others.  But see below
for a cogent critique of my blitheness.] 
Reed majority says a law is
content based if, on its face, the state has to look at content to figure out
if it’s protected, and then it’s strict scrutiny/presumptively
unconsititutional. Combined w/Sorrell,
a big deal.  Breyer concurrence: result
will be watering down of strict scrutiny, which is not so good.
 
Lawyers have a tendency not to take cases as seriously as
the judges who write them meant them.  Twombly rewrote the law of civil litig. by
having district judges pass on litigation by reading a complaint.  Bar didn’t believe it, and lower ct judges
for a while didn’t believe it.  That’s
not what they thought a motion to dismiss meant; but now it’s cited in every
case.  Same was true of Goodyear about personal jurisdiction—J.
Ginsburg rejected Cardozo’s opinion of years before, scores of years of litig.
and said there’s no general juris. over a corp. except where it’s “at home”—principal
place of business/registered to do business. 
Thought the Ct. couldn’t have meant that, but it’s clear that it
did.  Also true of NYT v. Sullivan; no defense bar as such when the case came down,
when such cases were dealt w/by private detectives and not 1A lawyers—thought it
was specific to the civil rights context. But we learned that libel law had
been federalized and constitutionalized. 
Reed will be the same.  1A side has a much better chance of getting
strict scrutiny than previously.
 
A particularly attractive way to think about Davis v. EA from 1A perspective is to
view video games as a new form of fiction. Syllogistically true: fiction is
protected if not defamatory; video games are fiction; thus unless there’s
discrimination against video games/the visual, video games should be protected.  But there is!
 
Bottom line advice: be careful not to seem to mock the
notion that there could be protection in this area, given the fact that lawyers
who don’t work in ROP context think there should be ROP in images.
 
What is the nature of the “right”?
With most IP rights, there are lots of predicates.  With ROP, the only standards are there must
be some kind of evocation and some kind of use—lack of clarity on what right
does/doesn’t protect is intimately bound up with lack of clarity on why we have
the right in and of itself.  So if we
could justify the ROP we could think about how that translated into rules and
limitations.
 
(1)  
Incentive-based. 
But incentive to do what? Become a celebrity?  Efficiently manage your image?  More IP-oriented.
(2)  
Consumer protection mechanism, way of preventing
false endorsement/misleading consumers.
(3)  
Privacy-based.
(4)  
Self-expression/self-definition from control
over one’s image to constitute self as human being.
(5)  
Inherent moral right: it is me and therefore I
own it.
(6)  
Unjust enrichment/fairness.
(7)  
Labor/reward—moral right that isn’t dignitary
(8)  
Economic harm: use could harm the person’s
career b/c of the way in which someone is used in the ad—compare Google v.
Garcia
 
No one can realistically believe that people want to become
star athletes to get endorsements. [I’m not so sure.]
 
But what about people who are famous for being famous?  Didn’t mean looking ahead to exploitation—they
wanted to be famous.
 
But these people work hard to become something, and you’re
exploiting that—free riding.
 
Even if we thought it gave you an incentive, whether we
thought the law needed to encourage it would be different. But anti-free riding
impulse is different from incentive story.
 
Incentive story is ex ante; free riding story is ex
post.  People who’ve invested their labor
in sports, or in being famous, have done something society considers to have
value and as a moral/natural rights matter they and not someone else deserve
the rewards. Unjust enrichment.

If a bunch of fans got together and programmed a noncommercial football game
using images of the players, bets that courts would feel very differently about
it.
 
Ability to make a lot of money off of Nike shoes seems like
a fair reward for working hard to be a celebrity. A fairness concept.  The difficulty is that spread well beyond
Nike shoes to other expressive media just b/c people pay for expressive media.
 
Expansion of law happened on advertising side—using a name
to promote a commercial product isn’t fair; meanwhile, the media bar ignored it
b/c we weren’t concerned about advertising until it bled over to (other) 1A
issues.  [Which was always weird b/c
those ads were always protected by the 1A if not false/misleading.]
 
But if it’s unfairness, not clear why it would be limited to
advertising.  If I make a lot of money
from a movie, why is that any better than making a lot of money from a car
dealership?  False endorsement.  But false endorsement also crept into movie
cases!  Theory of harm from use of the
image where people might believe you signed on to this and that might harm your
image or block you from other deals.
 
UK—no right of publicity as such.
 
Unjust enrichment doesn’t fully capture it—litigation is always
after the fact; it’s principally whether someone should be paid for it.  One side: person ought to have the right to
say no ex ante, whether you can do it or not, even if you’re willing to pay—that
aspect got lost in Keller and Hart where after the fact it seems so
easy to just create a settlement/pay. Principal reason to distinguish b/t
advertising and non-ads is that we don’t want that kind of control to exist
over non-commercial speech.  Not fair to
give people ex ante control over non-advertising speech about them.
 
Boundaries of what is perceived as commercial goods/services.
Box of cereal = yes.  Description of me
in a textbook = no.  But T-shirt with
picture on it?  What is that: expression
or product?
 
We have in the 1A a doctrine that is supposed to do that:
commercial speech.  Box of cereal = yes;
you in movie/game = pretty clearly no. 
Merchandising right: interesting. 
Poster of Che Guevara, bust of Martin Luther King—it’s not advertising,
but the right of publicity is the
expressive use.  Who thinks rights should
cover merchandise like T-shirts? Basically no one in this room.  But most of the litigators in the room would
accept such ROP coverage to save the other stuff.
 
But unjust enrichment has bite in that case, where the only thing being sold is a representation
of the celebrity—T-shirt w/Rihanna, bust of MLK.  Money solely by capitalizing on fame.  May also be a dignitary issue that underlies
it—Tom Waits’ distaste for advertising. 
Maybe we’d like to be able to give people control over what types of
products their image appears on.
 
Conflating two separate discussions: we don’t value most of
these interests highly.  Can we identify
the motivations for the recognitions of the right?  Do we accept any of them.
 
Strongest claims are Bette Midler-type: I don’t do ads and
you made me look like I did. But you could structure the law just to protect
that.  Could allow people to get
injunctions, but not damages and not alienable right to injunctions.  No right to trade it for money.  Kim Davis bobblehead doll: if she doesn’t
want a doll that says “praise Jesus” every time you shake it, should she be
able to effectuate that?
 
John Gotti has a more valuable ROP than the current Nobel
Prize winner in chemistry—what does that tell us about incentives?
 
Political economy: they find a celebrity from the state and
argue for protection based on the value of their persona. 
 
Tort rights exist for the mishandling of a dead body; but
are ROP the same kind of rights?  Stated
as control over economic value—not the same as dignity.  Why not postmortem defamation law to protect
dignity/family?
 
If we talk about the deceased celebrities’ rights, the
justifications above often go away.  The
issue of endorsement by the estate is accepted in TM law; though that
acceptance is circular/we don’t really ask about whether people think the estate
has actual interests.  Astaire’s widow
promoted postmortem rights b/c her husband was an in an ad dancing with a
vacuum, but it turned out she licensed that. 
Legislature responds to dignity, but that’s not how people behave and it
ends up being about money.
 
9 times out of 10, when someone calls looking for money b/c
the image is already out there, the reason that they are mad is that their
friends saw it and made fun of them/thought they endorsed it.  The moment you think of that as being you, your reaction is “they shouldn’t be
able to do that to me.”
 
Many comments here have depended on lesser protection for
commercial speech. If SCt abandons that distinction, have to wonder if the
result on noncommercial speech would wind up being less protective. 
 
Yes!  B/c scrutiny would
diminish, but also in terms of Jacobellis/Bose issue of appellate review of
initial determination (e.g., of deception/endorsement, as w/the findings of the
FDA/SEC etc.). 
 
© gets a 1A free pass; we don’t even ask the question.  My worry is that ROP will be put in that
category—it’s ©-like and therefore we don’t have to ask the 1A question, per Zacchini.
 
We’re not going to escape false endorsement as a successful
theory, but commercial speech doctrine is the only way to protect media
companies. 
 
You’re making money = commercial speech is an error courts
are too willing to fall into.
 
SCt has been inconsistent w/its definitions of commercial
speech.  Doctrine is important, but bad
cases make bad law, like Midler v. Ford
where she didn’t want to be in ads (though note she changed her mind); White v. Samsung (they called it “the
Vanna White ad”); Facenda (didn’t
help that internal email said that this was just about exploiting the NFL
brand).  That’s the problem w/video game
cases too—you can say the SCt has decided that video games are like books, but lower
courts still think it’s merchandise. 
[Here is where the caution about the Court being serious may help: the
Court was almost certainly serious about the video game thing, so if EA gets cert the chances of being
reversed on this are high.]  It’s not just
video games; it’s comics, it’s low art, it’s Saderup’s cheap drawings.
 
Merchandise: similar to ads in the substitutionary effect;
if the person wants to sell themselves, there’s a big difference b/t
single/small numbers of prints and multiple copies, which you do see in some of
the statutes.  If an unauthorized
producer makes the bobblehead, you can’t make your own and make as much
money. 
 
Like the myth of “life story rights” need for the movie
industry. The only reason for them is release from defamation/privacy claims,
and maybe cooperation; it’s also a signal to the industry that “we’ve got this
guy.”  But you don’t need them if you’re willing to take those risks. Does freedom to
make a biopic w/o “life story rights” decrease the value of those rights?  Sure. But so what?
 
Technology: came across in Keller arguments that there’s a fear of replacing people with
avatars, and you can make anyone into a movie. Tupac can sing on stage again.
Fear that the law needs to address that in a new way.  Nobody in the motion picture industry will
ever use actors again!  That got dampened
in the written decision, but came across clearly in argument—recognize that
this fear is driving decisions.
 
Would have been a different decision if it had been a NCAA
board game with player cards. Interactivity seems dangerous.
 
Could be captured by a false endorsement theory.  [Except that false endorsement itself can be
read so broadly as to suppress speech, which is why we got Rogers v. Grimaldi.]  Judges
would also likely be willing to expand the concept of false endorsement to
ensure that even pretty clear disclaimers didn’t work.
 
It’s really an unfair competition claim—usurping Tom Cruise’s
ability to work if you replace him with an avatar.  If people invest in something valuable and
someone else completely appropriates your value, that’s unfair
competition. 
 
Tom Cruise might have a dignity interest too, but if you
just use dead celebrities, it’s just like using robots. Visual image thinking
is magical thinking—a picture of you is more of a capture of you than writing
about you.  Versus “robots will destroy
everyone’s job.”  [See the movie The Congress.]
 
But Motorola v. NBA destroyed that broad concept of unfair
competition—also the Restatement of Unfair Competition, which says all that’s
left is hot news and false endorsement.
 
If courts felt like the level of appropriation was
significant enough, courts would expand the tort again.  If I fly a drone over the stadium, or stream a
prize fight through my cellphone, wouldn’t that count?  Some disagreement on this point.
 
False endorsement is something we have to accept, even if it
can be misused—we’ll never win that allowing false endorsement is ok.  [Again, I think Rogers v. Grimaldi weighs against that in its strong form.]  But we can get freedom to operate for other
things outside the scope of false endorsement.
 
In 4 states this year, SAG argued that Zacchini supports their view that you can’t have avatars.  They see this as a labor issue, and they want
to extend it, at least for a while, to the families of deceased
celebrities.  We have Tom Cruise in
movies all the time through parodies—have lookalike actors. 
 
At the same time, Elvis estate goes after Elvis
impersonators. 
 
We have to try to explain why none of the interests outside
false endorsement are enough to justify a cause of action, or what the place to
stop is.  Very strong anti-free riding
impulse in courts and in society generally, even though society couldn’t exist
without free riding.
 
Do we value copyright more than we value the right of
publicity?  It’s nonutilitarian.  Free speech is supposedly embedded in © but
it’s alien to the ROP—burden is on defendant to prove that free speech
outweighs ROP, but that’s backwards.
 
Avatars v. cartoons: people are used in the Flinstones (and the
Simpsons) all the time—judges are worried about replacing the real people.  But what would the narrow rule protecting
them be?
 
The only original thing Tom Cruise does is act—if you can
recreate that digitally, he’s gone. But live football games are different—Brett
Favre can play live football and no digital substitute exists for that. 

But the same is true for acting! Live theater remains a separate option, and G-d
doesn’t give you a right to a business model.
 
The contracts will also change so that an actor will have to
consent to being used in subsequent video games (and even movies) in order to
get the contract to make the initial movie.
 
Interests change from case to case, so you’re fighting with
a phantom.  We need to put the burden on
the other side w/strict scrutiny to show what gov’t interests are at
stake.  Presumptions matter in
litigation.
 
Avoiding the 1A: the Restatement (3d) of Unfair Competition test
for ROP has very clear exclusions.  But
the problem is that the states have ignored it.
 
Alabama: had an exception to an exemption MPAA didn’t like—as
a sop to MPAA, they threw in “for purposes of trade” and then commented that
they were using the Restatement (3d) of Unfair Competition.  So that’s better than Cal./Mo./etc.
 
Look at exemptions for creating a piece of art, but not reproductions—you
didn’t need high tech to put mass art in disrepute.  The next Andy Warhol is not safe.  The role of the visual/embodiment v. the word
is a real discrimination.
 
Less confident of variety of state courts’ ability to
implement non-constitutional limits. 
 
If courts perceive this as on the boundaries of the 1A, one
risk is that faced with too much 1A judges will say, treat it like the FDA on
labeling, SEC, etc.: throw it all out of 1A if bringing it in will involve
strict scrutiny.
 
More likely: we’ll get more strict scrutiny like review of
FDA and SEC.
 
More likely: ROP will be treated like ©, largely outside the
1A—real risk; no 1A scrutiny. But in contrast to © we lack robust internal
limitations. 
 
But ROP is not a matter of federal constitutional provision.
 
Cf. Gay Olympics case: property right in name or
likeness.  We won’t get strict scrutiny
b/c will be viewed as part of IP exception/independent and unique [or,
actually, not unique!]
 
Principles similar to fair comment would lessen the pressure
to impose a 1A constraint—it’s only in the 1960s when pressure comes to a head
on defamation. So a good enough definition of the tort would take care of a lot
of const’l problems.
 
But then you wind up w/50 different states and a whackamole
problem—can Alabama have these books or not?
 
This leads to a question: should we have a federal ROP?
 
But defamation didn’t have 50 different flavors—the flavors
aren’t all that different. There were uniform law types of movements. Such have
failed w/ROP.
 
Problem is trying to create 50 states w/sufficient
carveouts. What if statute in California had the same carveout for live people
as it did for dead? Then Keller comes
out the other way. But California will never do that.
 
Important people live in all jurisdictions, but famous
people are concentrated.  But it doesn’t
take many famous people to get a ROP passed in a state. 
 
Only a fed statute or 1A will answer the question. We need
to make consistent arguments about why the 1A mandates strict scrutiny.
 
Ohio and several other states have bright line exemptions.
 
A SCt decision is the only practical solution b/c that wipes
out the differences.  But that brings us
back to offering a coherent definition of what the right should be.  The justifications offered may or may not
withstand strict scrutiny: we need to think about how that might go. 

False endorsement: that will withstand strict scrutiny/commercial speech
scrutiny.  Unfairness—unlikely to
survive.

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