Right of publicity workshop part 2

How is the “right” to be reconciled with the First
Could be part of the vast universe of communication that isn’t
protected speech: Fred Schauer’s writing. 
Contracts aren’t protected by 1A, etc. 
Could just be market behavior. That won’t work for ROP b/c so much of
the regulated stuff is art.  [And
commercial speech.]  Not low-value in SCt
Next: explaining the tort involves subject matter
restrictions, viewpoint restrictions, content restrictions—thus you get strict
scrutiny and need a compelling state interest, narrowly tailored.  If it were judged this way, it couldn’t pass.
There’s always a less restrictive alternative: to create a prize system for
celebrities; create a compulsory license scheme.
Next: strict scrutiny is irrelevant to defamation
torts.  Content-based, viewpoint-based,
speaker-based.  1A applies to certain
classes of expression and remedies.
Next: Double down on Zacchini
and argue that the publicity tort is just like ©, an info production
device/engine of free expression with built-in 1A exemptions and rules.  Not very persuasive; have to believe the
purpose is info production and that’s not persuasive.  [Unless Zacchini is limited to its common-law copyright core where the right is one over his performance and not a right based on identity.] Also, not sure there’s a generally agreed-on
1A-friendly limits like idea/expression and fair use.  Grimaldi
perhaps attempts precisely this: to graft onto the tort a set of things kind of
like fair use (also see analogy to TM law). 
Next: this is secretly a privacy tort and no one knew about
it.  Inequalities of power/need to trust
another party can found fiduciary duty, and thus falls outside 1A.  Doesn’t think this works either.  If you think ROP is dignitary in part, maybe
this works.
Next and his suggestion: based on commercial/noncommercial
speech distinction.  Commercial speech
doctrine treats certain classes of speech as unprotected entirely: false or
misleading. To the extent ROP involves false or misleading attempts to hawk a
product, this is just consumer protection law. But not all of ROP can be so
described. (1) if not false/misleading, it either has to survive strict
scrutiny or has to be classified as truthful commercial speech regulable under Central Hudson.  (a) He is falsely claiming I endorse his
product—unprotected.  (b) Noncommercial
use of name/likeness—protected.  (c) Most
interesting: commercial speech but not purely misleading or false: Central Hudson, but until recently that
gauntlet was easier to run and allowed state to engage in somewhat broader
regulation than ordinary political/cultural speech would allow.
If rt limited to misleading commercial speech, overbreadth
and prior restraint doctrine doesn’t apply, making existing law make sense.
That all made sense 5 years ago, but it’s Tony Kennedy’s Constitution
and we all just live under it.  INS v. Sorrell put into Q the difference
between the standard track for public discourse regulation and the commercial
speech track—content-based and speaker-based restrictions = heightened scrutiny
even for commercial speech. That really screwed things up, since commercial space
is always content-based and speaker-based. 
Sorrell didn’t touch the
false/misleading v. nonmisleading commercial speech distinction, though, and as
long as that’s in place it’s possible to justify a slimmed-down ROP.
How do you define commercial speech?  One Q is whether all forms of what Dogan
& Lemley have called false endorsement to be a proposal to engage in a
transaction.  If yes, then no
problem.  If no (playing music at a
political rally is allegedly false endorsement, according to many singers),
then there is an issue. Would a ban on false political endorsement survive
strict scrutiny?  I think yes.  Not pure consensus in the group.
Thin conception of ROP leaves false light and defamation on
the table, as long as NYT v. Sullivan
standard was met. 
When you limit the tort to false endorsement/no relationship
to use of person’s likeness, courts just have a knee-jerk reaction to the need
to compensate people for a wrong done. Has had judges say: if you follow Rogers v. Grimaldi, it eviscerates the
right of publicity.  Which, yes.
What if there’s an advertising use where the person actually
does use the product, but didn’t consent to the use of her picture for an
endorsement.  Literally true: how does
that come out?  Maybe the state can’t
require more than a disclaimer under conventional commercial speech doctrine
b/c it’s only “potentially” misleading rather than “inherently”
How does Abdul-Jabbar
come out? Truthful claim that Alcindor was the 3-time champ; ct says commercial
context means audience believes there’s an endorsement.  It’s misleading, that produces a remedy, but
it’s not clear whether the remedy is ban or disclosure. 
Tom Cruise avatar appears in the film without permission:
that’s a different case though you can imagine an endorsement story. 
Rogers is not an
ordinary false endorsement test from the perspective of nonconstitutional false
endorsement law.  It explicitly rejects
dependence on every source of evidence that courts traditionally consider in
nonconstitutional false endorsement cases. 
There is an error-avoidance rationale for this, but (1) that needs some
justification in itself, and (2) it doesn’t explain the no artistic relevance
prong, which is a rump unfair free riding justification. 
Commercial use is usually ordinary public discourse/strict
scrutiny.  Commercial use doesn’t mean
that we’re at commercial speech. 
Is disclosure enough? 
That is a Central Hudson question.
A movie in which Tom Cruise is portrayed being himself seems
like an easy case.  It’s only the Tom
Cruise avatar playing another character that seems to drive courts crazy. 
Can a false endorsement turn something that isn’t otherwise
commercial speech into commercial speech? 
[Compare a standard false advertising claim: BMW funds a film in which
BMW is shown, among other things, performing well and passing emissions
standards.  Can a regulator challenge the
factual representations made in the course of the otherwise 1A protected film?
I think the answer is yes, though very few people in the room agree with me.  I’m also a fan of Rogers v. Grimaldi, though.  But
I am willing to believe that false endorsement claims can satisfy strict
scrutiny even for noncommercial speech (which Alvarez actually suggests). 
Only Alvarez can save us.  Alvarez
forces us to ask: Falsity over what? What harm does the falsity do?]
Suppose it’s a disparagement of someone else’s competing
product in the BMW-funded film.  I think
that’s still commercial speech, like Lexmark,
but lots of people disagree with me.
Jewel v. OSCO:
Judge said—yeah, on its face it’s a congratulatory ad, but the only reason they
took this ad out was to promote their own products. If you’re using the
commercial speech doctrine, we have to face the reality that corporate entities
put their names on stuff to sell products, even if those products aren’t named
in the ads.  Positive association
w/BMW.  [Which is why falsity is such an
important constraint on the regulator’s ability to act!]
Baseball cards: modern ROP starts with images on baseball
cards. Packaged w/gum, but not advertising the gum.  That doesn’t seem like commercial speech to
me under any test articulated.  But it
also doesn’t seem to be possible to get to Haelan’s
result and apply strict scrutiny.
NFL Films: gets a commercial benefit from producing its
films, but fully 1A-protected despite its economic interest.  [I agree, but it’s not b/c no factual
representation was being made.  It’s b/c
the alleged falsity in Facenda wasn’t
sufficient to justify gov’t intervention. 
This is why I care about Alvarez:
Alvarez tells us that falsity isn’t
enough; the falsity has to do a certain kind of harm, which can be determined
wholesale in some cases and retail in others, in order to justify regulation.  Facenda
isn’t a problem because it treated films as a subject of regulation, but
because it considered that the possibility of consumer confusion about whether
Facenda endorsed NFL Films over and above having announced for the NFL for
decades was significant enough to justify liability.  The harm to consumers, or to Facenda, from
this purported confusion was not enough (not to mention not proven with nearly
the certainty one would want before suppressing a message truthful on its face).]
Broad dissent on the assumption that commercial speech
doctrine will remain as it is.  Kennedy
may be wrong, but what he said was that content-based distinctions are
presumptively unconstitutional and that speaker and content are both ways to
get to presumptive unconstitutionality. [Which is why I think that the FDA and
the FTC and the SEC are very much in danger from many of the theories we might
advocate to get rid of the ridiculousness of the ROP.  There’s a reason that the SCt dismissed Nike v. Kasky as improvidently granted—you
couldn’t write the opinion for Nike without clearly driving a stake through
those regulatory agencies.  The Cal. SCt
had the right idea about defining commercial speech through factual
representations for purposes of false advertising law.  Though no one here agrees w/me.]
Is it plausible that there will be nothing left of the tort
if the SCt abolishes the commercial speech doctrine? Or will we be left with
the worst of both worlds—strong ROP because that’s a property interest, no FDA?
As a practical matter: We’re not going to end up with a
world in which falsity in commercial ads is going to be treated as favorably as
falsity in political ads. 
The real risk of applying strict scrutiny then is withdrawal
of scrutiny from ROP in its entirety. 

If the real likelihood is being thrown into a category of its own, we need to
look at whether there are internal limits on the ROP.  They could just say it’s not a new exception
but an old one: Zacchini, Gay
Olympics, copyright are all the same and all ok/exempt from the rest of 1A
Uses that seem troubling to other people—worries about
judges wanting to create some remedy.  So
what can we think of that will be second-best? 
[I think that may be unambitious, given that the defamation bar thought
the same thing pre-Sullivan—of course
there will be remedies for abuses!]  If
we go with false endorsement, then most merchandising uses will be false
Nobody knows what merchandise is after the 3 Stooges case.
Yes, but you can say that many instances of merchandising
use involve a plausible claim of false endorsement—when marks are used as
products, that implies endorsement, or at least (doesn’t believe that) courts
have accepted that theory for pure use of image on T-shirts.  So as a practical limit, use of persona as
intrinsic part of product is actionable b/c that causes confusion.  [So what’s left of Rogers after that?]  [This is
why we need to think about the justification for Rogers as part of this inquiry!]
The key is framing Davis
sympathetically, when the equities all seem to lie w/the other side for lots of
people.  Frame these issues ex ante:
censoring the depiction of history in realistic media, whether a video game or
anything else. Consider a videogame about simulating elections: Should Dan
Quayle or Hillary Clinton have the right to say no?   What about Manuel Noriega?  Right to control how anyone can experience
the video game: practical problems—that’s a lot more attractive than “should we
share the revenue after the fact?”
Functional products v. expressive works.
But a poster of Che Guevara is clearly an expressive work
and courts throw it on the other side of the line.
Sure, Cal. SCt screwed that up with T-shirts.  A T-shirt is a functional product that may
have expression on it; just b/c you could put expression on it doesn’t make it
protected by the 1A.
But the cts have said that it’s unprotected even if  you put expression on it.  There’s a whole body of case law and
SCt doesn’t care about lower courts.
But it may care about instincts.

There’s a distinction from using a likeness in an expressive work (calendar) to
advertise a car and we shouldn’t let them be mushed together. 
Baseball card and statue are only valuable as expressive
works, whereas a T-shirt and a coffee mug have value aside from that.  Saderup
didn’t like having T-shirts be sold so they made up a test to prevent that.

Average person would be comfortable with a rule that says “you can’t sell
T-shirt w/Michael Jordan’s image on it w/o permission,” but sees value in video
games.  If you bring people along to the
result that these games can’t get made/can’t get made without private
censorship, they’ll reject the ROP claim.
What if the SCt said, we can address that using eBay? Might just say that there are all
sorts of situations where these images are paid for, and so we should just create
a licensing regime.
No one would make such a game and await suit with no set
Compulsory licensing?
Licensing is still unfair treatment of video games v.
biographies—no one would say that it’s ok to have a damages-only remedy for
biographies.  We all agree on the truly
historical expressive works.  The fact
that people do make life rights agreements doesn’t mean they have to; some
judges and in-house counsel seem to be under the misimpression that life rights
agreements are required—but the practice of doing it risks building it into the
Doing it to eliminate risks. [But why doesn’t that mean that
courts could reasonably say “get a license or do not make the movie,” as they
do with copyright?  Going forward in a
world in which everyone else gets licenses looks negligent.  Not that I agree with this reasoning but I
understand why judges mistake the meaning of these agreements.]
Trying to figure out an answer to: “if we rule for EA, isn’t
the T-shirt allowed?”
Lawyer can respond: “that’s not my case.”
Doesn’t think that will work; thinks an exception will be
found for ROP, though own normative take is unlikely to be adopted by SCt. So
we need to frame some built-in speech protections like speech.  Fiction is compelling but dangerous.  One problem was Davis disfavoring realistic portrayals—jeopardizes nonfiction.
We need to articulate something the SCt can adopt at least
in broad outline if it doesn’t do the details. At least for realistic
depictions, in noncommercial speech, X should be protected.  That are not exploitative.  [What does “not exploitative” mean?]  I like Rogers,
but you could read ROP out of existence that way b/c everything is artistically
relevant—which most of us like, but not everyone will. 
Many state statutes have language excluding from the scope
of ROP the core 1A stuff. One could make an argument that, like fair use and
idea/expression for ©, those are constitutionally required as an overlay and
they have the advantage of existing in many states; it’s not totally
foreign.  If those get strong enough
through statutory analysis/constitutional avoidance, you narrow the problem
even if you lose the tchotchke cases.
Hard time w/concept of constitutional overlay/privilege—looking
at defamation etc., the only reason we have a constitutional overlay is b/c SCt
decided that lots of speech was protected and came up with definitions of
acceptable versions of the torts.  We
always thought defamation etc. weren’t speech w/in 1A. This is clearly speech,
not an unprotected category; what justifies a constitutional overlay?
Structurally the issue is a little broader—it’s not so much
that these are nonspeech categories, but pragmatic view: certain forms of
regulation are inevitable; we want privileges/overlays when courts think there’s
something inevitable.  (1) we don’t need
to say child porn is non speech to recognize that it will remain regulable. (2)
libraries are going to engage in viewpoint based content selection;
inconceivable not to do so. Island Trees:
there’s an exception/overlay for partisan political viewpoint discrimination—a broader
phenomenon than just defining things out of the 1A.
With this SCt, the one hot button issue is that they shouldn’t
recognize a new category of unprotected speech—good for our side.
Hustler v. Falwell:
we don’t need a new privilege/overlay, just a recognition that this is asked
and answered by NYT v. Sullivan. You
need a provably false factual statement (endorsement) that does harm; maybe
intent to imply endorsement is also required.  All of these cases are about end runs around
libel laws to control what people will say.
The problem w/fair use is that we don’t even know what it is
we are fairly using. Still haven’t figured out the core of this right that’s
worth protecting/allowing other to use. 
Transformativeness test was from fair use, and it’s incommensurable.
Can ask for constitutional purpose, or purpose of the right.  If you say this is about false commercial
speech as the paradigm case, then you would say that what Congress/state does
in creating tort is to ensure the free flow of truthful info about sale and
purchase of products; tort assists us in that purpose.  That’s not what a lot of people think the
tort is primarily about, but it could be. Dignity/misappropriation/free riding
version would be different. 
New state IP rights to identity in general—not ok.
Don’t advocate for less than what you want: strict scrutiny
for everything, then strict scrutiny for noncommercial.
But Gay Olympics, ©, etc. may make that a dangerous pitch.
Does the pitch have to be, “you blew it in Zacchini” or “you need to cabin the
acceptable result in Zacchini”? If
the latter, you need a theory of the 1A under which the cabining works.

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