Wilt Chamberlain's Family Tries To Block Film About His College Years, Claiming 'Publicity Rights'

from the ugh dept

A filmmaker is trying to make a film about basketball great Wilt Chamberlain's college years at Kansas. However, his estate appears to be threatening the filmmaker if he goes ahead, claiming such things as publicity rights over Chamberlain's image (thanks to Nancy for sending this over).
“Please be advised that on December 21, 2001, the court approved that the Chamberlain Family are entitled to ‘all of the rights, titles and interests into the intellectual property and rights of publicity associated with the international sports celebrity in the name and likeness of Wilton Norman Chamberlain.’

“Kevin, therefore, I request on behalf of my family, and as outlined in our above-mentioned letters, that you do not violate these rights by pursuing the name and likeness of Wilt since you do not have permission from our family.”
We've discussed many times just how frequently publicity rights are being abused to stop basic speech, and this appears like another such case. While publicity rights depend on the specifics of state laws, it is generally not considered a violation in any way to make a film about a public figure. That's why something like The Social Network was allowed, despite Mark Zuckerberg's obviously distaste for a movie highlighting the various legal claims against him and Facebook.

Publicity rights are supposed to be about preventing someone's image from being used to endorse a product -- such as putting their image on a cereal box. According to this document (pdf), Kansas doesn't have a publicity rights law (or didn't back in 2010). So, perhaps they're claiming that some other state's laws might apply. The family appears to live in Las Vegas, and Nevada does have a publicity rights law, which extends 50 years after death -- so perhaps that's what they're relying on. Many other states don't recognize such rights after death.

Either way, this seems silly and not at all a publicity rights issue. No one is going to assume that this movie is necessarily endorsed by Chamberlain or his family, just as they don't naturally assume any sort of biopic was obviously endorsed by those the film is about (or their families). Instead, this just seems like a clear case of someone trying to use the law to censor a filmmaker. Shameful.


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    PlagueSD (profile), Aug 21st, 2012 @ 10:52am

    So here's what you do...

    Make the movie, but change the person's name. Then at the end you can just put the blurb about

    "All characters appearing in this work are fictitious. Any resemblance to real persons, living or dead, is purely coincidental."

     

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      James Plotkin (profile), Aug 21st, 2012 @ 11:04am

      Re:

      I'm afraid that doesn't work.

      The right of publicity protects the persona of the person, not only their actual name, image or voice. Appropriation of a likeness may also be actionable if it can be proven that the character is "obviously" likened after the plaintiff.

       

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        MrWilson, Aug 21st, 2012 @ 11:54am

        Re: Re:

        That would negate parody and satire out of the box.

         

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          James Plotkin (profile), Aug 21st, 2012 @ 12:38pm

          Re: Re: Re:

          @MrWIlson

          Parody and satire are categories of fair use. Fair use is a doctrine of copyright law. You cannot use a copyright defense (and a statutory one at that) to a charge of misappropriation of a persons image (an unrelated common law tort). They're two different types of IP.

          Now I realize you didn't mean that as a retort. Sorry if the above comes off as a rebuttal. Just layin' out the law!

           

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            Anonymous Coward, Aug 21st, 2012 @ 1:20pm

            Re: Re: Re: Re:

            It seems you don't understand what is being said. How can you parody a film if you cannot employ a likeness of the actors?

             

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              James Plotkin (profile), Aug 21st, 2012 @ 2:56pm

              Re: Re: Re: Re: Re:

              A person can sue for their likeness being used in a parody. The thing is, they're suing in tort, not under the copyright law.

              There are two different potential causes of action. The person may:

              1) Sue for misappropriation under the right of publicity; or

              2) Sue under copyright law.

              However, they couldn't sue under copyright law for the use of their image. Copyright law doesn't protect that unless their image was fixed in some copyrightable work. In that case, it's the work being infringed, not the persons right of publicity.

              Again, copyright doctrines like fair use only apply to 2). If you made a parody of another film and were sued for copyright infringement, you may make use of the fair use (or fair dealing in Canada and the UK) doctrine to make a fact based defense of your parody.

               

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                MrWilson, Aug 21st, 2012 @ 6:31pm

                Re: Re: Re: Re: Re: Re:

                So that would mean that politicians could sue each other for misappropriation under the right of publicity for using their likeness in an opposing campaign's political ads.

                At some point constitutionally protected free speech has to override publicity rights.

                 

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            Anonymous Coward, Aug 21st, 2012 @ 7:23pm

            Re: Re: Re: Re:

            ""Parody and satire are categories of fair use. Fair use is a doctrine of copyright law. You cannot use a copyright defense (and a statutory one at that) to a charge of misappropriation of a persons image (an unrelated common law tort). They're two different types of IP.

            Now I realize you didn't mean that as a retort. Sorry if the above comes off as a rebuttal. Just layin' out the law!""

            For now at least.

             

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        G Thompson (profile), Aug 21st, 2012 @ 11:54pm

        Re: Re:

        Publicity/Personality rights are something that I don't have much (if any) knowledge about within the USA.

        Passing off (as the original common law) is still within Australia though can only be used in situations where it is misleading for commercial gain. Defamation though is another beast entirely and is being used as a stick lately, admittedly not very well by celeb/public figures.

        My question is would this still be an actionable situation under USA styled Publicity rights if the film makers made the film elsewhere. Canada perhaps? Though I see Krouse v. Chrysler (1971) and Athans v. Canadian Adventure Camps (1977) have expanded on the usage of passing off when dealing with an individuals image.

        On a side note: I like your blog

         

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    AG Wright (profile), Aug 21st, 2012 @ 10:58am

    Fame

    It seems to me that if the family wants to have a little control over what is going to happen in the movie and wet their beak a little they ought to cooperate with the movie makers, but no that would be too easy.

     

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    Mitch Featherston, Aug 21st, 2012 @ 10:59am

    Sickening

    I think Publicity Rights maybe the most disgusting of all IP, especially for use with deceased people. It's a cottage industry for some, like the family of James Dean. Here's a link from THE BOOK KNOWLEDGE: http://en.wikipedia.org/wiki/Personality_rights

    The law makes NO SENSE for dead people and only LIMITED SENSE for the living.

     

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    James Plotkin (profile), Aug 21st, 2012 @ 11:02am

    Incorrect

    Sorry Mike,

    Right of publicity finds its roots in the tort of appropriation. The tort protects two distinct rights: "The right of publicity" and "the right of privacy" (countervailing rights).

    It's wrong to say that misappropriation of identity is generally limited to "cereal box" type cases. You would be right, however, if you said that the right of publicity almost always has to do with economic gain.

    The right to privacy, on the other hand, is simply a persons right not to have their image, likeness, voice or persona appropriated by a third party without their permission. It is under this doctrine that the Chamberlain estate makes it's claim.

    It's true that tort law is State governed and as a result, different States have different statutes and rules. That said, the principles of the tort of appropriation are well established.

    Mike, this has nothing to do with freedom of speech. If someone wanted to make a movie about you, and you weren't OK with it, you would likely oppose the project. The reason why the family doesn't want the movie made is irrelevant. It's a property right! It has it's own modalities; but it's a property right none the less.

    I appreciate your vigor. But not everything has to be a First Amendment issue. I've seen articles on tech dirt vigorously defending a persons right to privacy. Why not now?

     

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      You're a Gazelle! (profile), Aug 21st, 2012 @ 11:28am

      Re: Incorrect

      So, people can just claim publicity rights when someone like a documentary filmmaker or a reporter says something they don't like about them. That's a great way out!
      We had better get all those unauthorized biographies off the shelves too!

       

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        James Plotkin (profile), Aug 21st, 2012 @ 11:49am

        Re: Re: Incorrect

        The documentary film maker can tell the persons story. They can even dramatize the story. They just can't use anything that is proprietary.

        I'm not saying it's a perfect situation. It rarely is when two sets of rights are in direct conflict with one another. We have to balance the public freedom of expression with the private right to privacy.

        I'm not saying it's easy. I just think that (as he often is) Mike was a little disingenuous and lacked objectivity:

        "We've discussed many times just how frequently publicity rights are being abused to stop basic speech..."

        No Mike, that's your assessment in which you import your opinion and mix it (almost seamlessly) with fact. It's a good thing I know a little about right of publicity or I may have been misled into thinking that all (or the majority) of claims in this area are evil jerks trying to deny the public their freedom of expression...

        Just once I'd like to read a piece of objective reporting on this site.

        S'il vous plait Mike! Arręt avec les niaiserie!

         

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      Mike Masnick (profile), Aug 21st, 2012 @ 11:40am

      Re: Incorrect

      Mike, this has nothing to do with freedom of speech. If someone wanted to make a movie about you, and you weren't OK with it, you would likely oppose the project.

      And I shouldn't have any legal right to do so. In fact, I find the idea that you think this is reasonable quite scary.

      I appreciate your vigor. But not everything has to be a First Amendment issue. I've seen articles on tech dirt vigorously defending a persons right to privacy. Why not now?

      There's no privacy issue here. This is a movie about a historical figure's life, built off of public information.

       

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        Anonymous Coward, Aug 21st, 2012 @ 11:52am

        Re: Re: Incorrect

        "Mike, this has nothing to do with freedom of speech. If someone wanted to make a movie about you, and you weren't OK with it, you would likely oppose the project."

        And I shouldn't have any legal right to do so. In fact, I find the idea that you think this is reasonable quite scary.

        But, in fact you do. Why should your right to privacy be only limited to deep packet inspection and warrantless GPS locating?

        "I appreciate your vigor. But not everything has to be a First Amendment issue. I've seen articles on tech dirt vigorously defending a persons right to privacy. Why not now?"

        There's no privacy issue here. This is a movie about a historical figure's life, built off of public information.

        I am not sure about the implications of the court's award. I do view the award as something akin to an inheritance by his heirs. His life, image, reputation and accomplishments have commercial value- not solely historical value. Why should someone who was not awarded those rights be allowed to profit from them; particularly if it could impact the heirs own ability to monetize his legacy?

         

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        James Plotkin (profile), Aug 21st, 2012 @ 11:54am

        Re: Re: Incorrect

        Mike,

        I refer you to my explanation that the right of publicity's mirror image is the right to privacy. They are two sides of the same coin (appropriation).

        The public information is not protected by the right of publicity. The film maker has every right to use Chamberlain's stats. The family doesn't own those...The fact that he was an historical figure is irrelevant. The law doesn't distinguish. The only point where the fame of the person comes into play is when a person makes a claim that their image or persona has been infringed.

         

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          art guerrilla (profile), Aug 21st, 2012 @ 1:10pm

          Re: Re: Re: Incorrect

          gee, not to restate the obvious: he's fucking DEAD, *LOGICALLY* (realizing that both the law and contemporary society have as little to do with 'logic' as possible) *HOW* does a DEAD person have ANY 'publicity rights' (ignoring the idiocy of such a concept in the first place) ? ? ?
          ...further, WHY -again, LOGICALLY speaking- does ANOTHER party 'inherit' ANYONE's 'publicity rights', its fucking insane...
          now, if you say 'well, that's the law'; then you've outed yourself as an abject authoritarian...
          but you appear to be defending both the concept in general, and the law in particular...
          that is why i think of you as a dick...
          you may publicize that all you wish...
          art guerrilla
          aka ann archy
          eof

           

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            Anonymous Coward, Aug 21st, 2012 @ 1:39pm

            Re: Re: Re: Re: Incorrect

            When your parents die, am I entitled to their money? If not, why am less entitled to that than to make a profit from exploiting their lives, fame and accomplishments? The court awarded the family the rights to Wilt's fame and legacy. Those rights have value. Why is this filmmaker entitled to cash in after the court has ruled?

             

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              Anonymous Coward, Aug 21st, 2012 @ 9:47pm

              Re: Re: Re: Re: Re: Incorrect

              Because they are dead. They aren't going to practice those rights, themselves. Transferring those rights to the family 'just because' makes as much sense as copyright being transferred. These are intangibles, and more importantly a documentary is meant to be factual. That facts and free speech of those facts can be abrogated by law is scary.

               

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      John Fenderson (profile), Aug 21st, 2012 @ 2:14pm

      Re: Incorrect

      Mike, this has nothing to do with freedom of speech. If someone wanted to make a movie about you, and you weren't OK with it, you would likely oppose the project. The reason why the family doesn't want the movie made is irrelevant.


      How does any of that make it have "nothing to do with freedom of speech"? It seems to me like it has everything to do with freedom of speech. That it may be opposed to a property right (which I disagree with, personally, but let's run with it for the purposes of this comment) in no way reduces the fact that it is deeply intertwined with freedom of speech issues.

       

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    Anonymous Coward, Aug 21st, 2012 @ 11:03am

    Always so quick to condemn. What if the family plans a motion picture of its own? It stands to reason that the potential market for a Wilt Chamberlain film is limited. Why should his lawful heirs not have the exclusive claim to use his international celebrity consistent with the Court's award? Or perhaps the family finds the commercial exploitation to be repugnant and against their wishes? This is different than writing an article or biography, though the contrast between a "bio-pic" and written biography draw interesting questions.

     

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      James Plotkin (profile), Aug 21st, 2012 @ 11:07am

      Re:

      Or what if they just don't want his memory "tarnished" by a Hollywood production. I'm not saying the movie would be bad or injurious against Chamberlain; but what if his family just wants peace. What if they don't want attention drawn to their loved one. DO the family's wishes mean nothing?

       

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        Anonymous Coward, Aug 21st, 2012 @ 11:35am

        Re: Re:

        I agree with you. I actually believe privacy rights trump the public's right to know. I was a big fan of Wilt the Stilt and am one of those still in awe of his hundred point game and what that said about his domination of professional basketball. I'd actually probably watch a film about him, but have more respect for him, his family and his memory to presume I'm entitled to it.

         

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          John Fenderson (profile), Aug 21st, 2012 @ 2:20pm

          Re: Re: Re:

          I actually believe privacy rights trump the public's right to know.


          I generally agree, but don't think it's always true. But that doesn't enter into this situation, as I also don't think that dead people should have any privacy rights whatsoever, particularly not if they're people of historical significance. They're dead.

           

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      Anonymous Coward, Aug 21st, 2012 @ 11:30am

      Re:

      This is different than writing an article or biography...

      I'm legitimately curious. How is this different than writing a biography? I'm assuming the film isn't taking too much artistic license here and tossing in an alien invasion or a Michael Bay explosion sequence.

       

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        Anonymous Coward, Aug 21st, 2012 @ 11:44am

        Re: Re:

        Good question and I thought about it for a long time. And truthfully, I don't have a great answer. I guess that I think that even a biography of a subject whose publicity rights are conferred to heirs should have some say in such book's publication.

        I really think that privacy rights and the right to exploit (or not) your own name, likeness, image and reputation are more important than the public's right to know about your life.

        I know nothing about the laws related to biographies but know that many are written, presumably without the consent of the families. Perhaps it's because court awards of IP rights to the personality to their heirs is a relatively new phenomena.

         

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          Ninja (profile), Aug 21st, 2012 @ 12:10pm

          Re: Re: Re:

          Actually, a public personality is public. What if a newspaper wants to put together a documentary on the public facts of his life? Would it make any difference? I don't think so. Maybe one could have a point for living personalities but even so I doubt it. If the biography (book, movie, audio, whatever format) is based on public facts and doesn't show bias I think there's no problem releasing it. If I were the producer I'd call the family to check on the work before releasing though. Not for royalties but to avoid bias.

          And I thought you were gonna troll at first glance but you presented a somewhat reasonable disagreement and contributed to the discussion even when you drifted into the realm of your own opinions, way to go!

           

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            James Plotkin (profile), Aug 21st, 2012 @ 12:22pm

            Re: Re: Re: Re:

            Ninja,

            I'm just explaining the state of the law here. The right of publicity doesn't concern itself with facts or information (let's call it data). It concerns itself with image.

            So, your newspaper reporter could write his article without infringing the right of publicity. In fact, perhaps he could even legally use a picture without permission (fair use/fair dealing for the purpose of news reporting or criticism), but I digress.

            Making a movie that evokes the person's image, name, voice etc. is a misappropriation. Publishing already public (or even private) data is not.

             

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              Anonymous Coward, Aug 21st, 2012 @ 1:19pm

              Re: Re: Re: Re: Re:

              So it's ok, it's just not ok on film.

               

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              MrWilson, Aug 21st, 2012 @ 9:25pm

              Re: Re: Re: Re: Re:

              A person's image, name, voice, etc. is "data" as you put it. It is a fact that Wilt Chamberlain looked and sounded the way he did. His presence at a time and place being depicted in film would be fact. If the "right" of publicity doesn't concern itself with facts or information, then it doesn't exist at all.

              Also, if you read the linked article, you'll see that the filmmaker has permission and original source information from people who were involved with the topic of the film (which isn't solely about Wilt Chamberlain), so Wilt's presence at the school in the memories of people who were there would also be fact.

               

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            Anonymous Coward, Aug 21st, 2012 @ 12:25pm

            Re: Re: Re: Re:

            I hate to disappoint you, so why don't you go fuck yourself.

            Moving on; I do not know how you could possibly make a movie that did not include archival footage, his name likeness, image, etc. I suppose it would be possible to make a film on facts gleaned from the public record. But I can't imagine how you'd achieve commercial success. Films are about personalities, not the recitation of free throw percentages and recaps of news articles.

            If the producers want to go beyond that, I think they need permission. And this is evidenced in the many cases where accidental (or notorious) celebrities sell their story to Hollywood. It happens every day and I see no reason why this deserves to be an exception.

             

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              ldne, Aug 21st, 2012 @ 4:13pm

              Re: Re: Re: Re: Re:

              The family doesn't own the rights to everything, especially things like college game films and still photos. A lot of that stuff is covered under release forms Chamberlain would have signed while he was alive granting the rights to the school.

               

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    Anonymous Coward, Aug 21st, 2012 @ 11:34am

    This is 2012. Who is Wilt Chamberlain?

    Why should we care?

    Do you not have something about someone we have heard of?

    You've probably never heard of me either. Can you please write about that?

     

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      Anonymous Coward, Jun 3rd, 2013 @ 7:14am

      Response to: Anonymous Coward on Aug 21st, 2012 @ 11:34am

      That's just assanine to startvoff with. If yoy are a true basketball fan, you would know how transcendent of the game he was. You haven't heard of Wilt cuz obviously your head is stuck where the sun don't shine.
      Furthermore, regardless of how much I would like to see s movie made, I feel we should respect the family's wishes. This isn't just a public figure, it's a person who had loved ones. Why can't we respect a human being's wishes. They have their reasons to not endorse this project, possibly for the wrong reasons, but that's their right, not the public's

       

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    Anonymous Coward, Aug 21st, 2012 @ 11:38am

    This is 2012. Who is Wilt Chamberlain?

    Why should we care?

    Do you not have something about someone we have heard of?

    You've probably never heard of me either. Can you please write about that?

     

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    Anonymous Coward, Aug 21st, 2012 @ 11:38am

    This is 2012. Who is Wilt Chamberlain?

    Why should we care?

    Do you not have something about someone we have heard of?

    You've probably never heard of me either. Can you please write about that?

     

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      Answer Guy, Aug 21st, 2012 @ 11:55am

      As usual, this will go over most of your heads, so let me explain:

      This is 2012. Who is Wilt Chamberlain?

      Why should we care?

      Do you not have something about someone we have heard of?

      You've probably never heard of me either. Can you please write about that?


      His 5 minutes of fame are over. This "move" seems to be making sure of that. And the 20th century is over (yes, we are indeed in 2012, which is in the 21st century).

      There is a limit. "Asserting" Copyright/"Publicity Rights" yields total anonymity here. And ZERO new "fans". And the old "fans" forget. No problem - lots of new 5-minute stars come along to fill the void. And they're gone and forgotten in 5 minutes, too. Maybe there will be an oblique reference in some obscure history text that no-one will read. That's all.

      Get it now?

       

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      Anonymous Coward, Aug 21st, 2012 @ 11:56am

      Re:

      Not surprising to get a comment like this from a group who consider themselves "athletes" because they participate in a LARP league. What a loser.

       

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        MrWilson, Aug 22nd, 2012 @ 7:37am

        Re: Re:

        Anonymous Cowards are all LARPers? That explains so much. I guess the AC trolls actually are playing trolls.

        What kind of character do you play, AC. One that stereotypes other anonymous people on the internet using no evidence whatsoever?

         

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    Anonymous Coward, Aug 21st, 2012 @ 11:38am

    the point being will the film maker now not make the film through fear of legal action against him? if there were a politician involved, there would definitely be no film. there are none so gullible as politicians when someone is asked to support copyright claims of every sort!

     

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    Ninja (profile), Aug 21st, 2012 @ 11:44am

    CHVSHBVWDTRVDSFKVVJEAH!!!!!!!!!!!!!!!

     

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    James Plotkin (profile), Aug 21st, 2012 @ 12:50pm

    Documentary

    I wish to point out that someone could make a documentary film about Chamberlain. They can even use film footage and images from his career. They can use excerpts of interviews or any copyright protected material for that matter (providing the rights are cleared).

    I just want to make sure that a clear distinction is being drawn between the right of publicity and copyright. They're both forms of intellectual property, but that's where the similarities end...

     

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      Anonymous Coward, Aug 21st, 2012 @ 1:26pm

      Re: Documentary

      There's no such thing as IP but it's cute watching you tie yourself in knots insisting to things that aren't related are still similar enough to perpetuate the term even while pointing out how different they are.

       

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        G Thompson (profile), Aug 22nd, 2012 @ 12:13am

        Re: Re: Documentary

        There's no such thing as IP

        Enquiring minds would like to know exactly what multi-verse do you live in?

         

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          Anonymous Coward, Aug 22nd, 2012 @ 7:33am

          Re: Re: Re: Documentary

          The real world, a place where it simply doesn't make sense to abstract disparate laws, like copyrights and publicity rights, into a collective term while simultaneously conflating them with property rights by using a ludicrous term like 'intellectual property.' Just to be clear, copyrights, trademarks, patents, and publicity rights certainly exist in various arrangements at various points on this globe. What doesn't exist is the abstract concept of 'intellectual property.'

           

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            G Thompson (profile), Aug 22nd, 2012 @ 8:06am

            Re: Re: Re: Re: Documentary

            I understand what you mean and actually agree with you about arbitrary and ambiguous mental constructs that are purely conceptual for the benefit of the minority, but your phrase "doesn't exist is the abstract concept of 'intellectual property.'" is a logic fail since existence (and lets not get into Plato's theory of shadows on a cave wall) by its very nature means if something IS then it exists.. and 'IP' whether we like it or not DOES exist because you are actually debating it and it can be shown to be in usage. It's not a faith based existence (though we could say everything is including money et.al).

            Though we could get into the solipsistic theory of Only I exist and everything else is a product of my deranged imagination... but then who the freakin hell would be deranged enough to imagine this universe ;)

             

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      Anonymous Coward, Aug 21st, 2012 @ 2:10pm

      Re: Documentary

      So they can use his images when its OK, but not when its not OK, but the line between OK and not OK is a line drawn in the sand?

      Yeah, right.

      You first said they can't use his likeness, persona, or voice. And now you say they can. Whats the difference between a biography, a documentary, and a film?

       

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        G Thompson (profile), Aug 22nd, 2012 @ 12:20am

        Re: Re: Documentary

        They can use any image, sound, text etc that has already been published about him eg: a film of a game, a photo from a newspaper, a friends opinion/memory of events etc.

        Just not AFAIK under some states statute/case law an actor portraying him without the permission of the estate.

        Personally unless its for commercial usage (ie: promotion of a product) and also not defamatory per se there should be no problem when a person is dead. Privacy should ONLY be for the living, families/estates should only come into the privacy fold if it is specifically about them and they are still alive!

        Commercial passing off is wrongful though

         

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    Anonymous Coward, Aug 21st, 2012 @ 1:45pm

    There's no such thing as IP

    There's an entire body of law that deals with the subject you claim doesn't exist. You really should get out of your Mom's basement some time and greet the real world.

     

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      Anonymous Coward, Aug 21st, 2012 @ 5:00pm

      Re:

      Also, if there's no such thing as IP, how do internet addresses work?

       

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      Dave Xanatos, Aug 21st, 2012 @ 8:13pm

      Re:

      There's an entire body of law that deals with the subject you claim doesn't exist.

      I don't think he claimed the subject didn't exist. He said there is no such thing as Intellectual Property. I don't think you can prove IP exists by pointing to a body of law, as the law itself can be designed to deal with the unknown or unknowable. It can even just make stuff up so that existing laws will fit. Haven't you heard of a 'legal fiction'?

      In any case, you're awfully cavalier throwing that word 'exist' around. How do you quantify the existence of something that has no weight, volume, or mass? It can also be 'created' completely through the processes of your intellect and 'exist' completely inside your mind. Your imagination is just as substantial and measurable. Products of the imagination are not said to exist, therefore Imaginary Property does not exist in any measurable sense, in spite of what the law asserts.

      Back on topic: Publicity Rights are yet another fiction designed to censor and limit the spread of information, ideas, and culture. They do so under guise of protecting reputation and privacy, even though the information could be wholly factual and easily learned from public sources. Any information that is obtained legally should be legal to spread around or base a movie on.

       

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        James Plotkin (profile), Aug 22nd, 2012 @ 6:31am

        Re: Re:

        1)"Haven't you heard of a 'legal fiction'?"

        Why yes I have! In fact, intellectual property is a legal fiction. But so are a lot of other things. A legal fiction simply refers to a concept created within the law to deal with a given problem or situation. Copyright is a body of law developed from the "need" for authors to protect ownership in their "intellectual creations". Patent law is much the same except for inventions of utility.

        The point is that the fact that IP is a legal fiction doesn't mean that it doesn't exist (as a subject, concept, word, or anything else). It's quite real. It has real world implications and is the subject of a rich an expanding body of case law. So either way, it's just silly to say that IP doesn't exist. You can say it's not tangible (and I would be the first to agree with you), but you can't say it doesn't exist regardless of the meaning you assign to the word "exist".

        2) "They do so under guise of protecting reputation and privacy, even though the information could be wholly factual and easily learned from public sources"

        The right to privacy protects people's privacy. The right of publicity is what protects a persons right to exploit their image. Again, they are two sides of the same coin (publicity rights or "droit a l'image" in French). I've explained this above, it isn't the information (or data as I called it) that is protected by the right of publicity. In fact, raw data isn't protected by copyright either.

        People are conflating way too many concepts here. The FACT (in the literal sense of the word fact) that Wilt Chamberlain had a thin mustache is not protected by either the right of publicity or copyright law. For a more detailed explanation I would recommend any substantial doctrinal writing on copyright law and right of publicity...I gotta get back to work :)

         

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          Dave Xanatos, Aug 22nd, 2012 @ 7:31am

          Re: Re: Re:

          The point is that the fact that IP is a legal fiction doesn't mean that it doesn't exist (as a subject, concept, word, or anything else). It's quite real.

          I might concede existence in the context that you are using, but I certainly would say that it's 'quite real'. And the fact that something non-real affects reality doesn't in and of itself grant substance to it.

          You can say it's not tangible (and I would be the first to agree with you), but you can't say it doesn't exist regardless of the meaning you assign to the word "exist".

          In this case, the meaning I was using for exist is 'having tangible form'. So, no I don't think it's silly to say it doesn't exist. The heart of most of the conflict in the IP realm comes from the attempt to assign property-like rights to intangible property. It is almost completely unenforceable and contrary to human instinct and behavior. The very fact that the area of IP law is vast and growing speaks to the impossibility of protecting intangible property. You might as well try to contain the air around you with a chain link fence.

          The right to privacy protects people's privacy. The right of publicity is what protects a persons right to exploit their image.

          I did say it was a guise. That is the way publicity rights are defended and the IP apologists in these comments have been using the same tactic. The reality is they want to prevent others from making any money if they can't have some too. The only part of publicity rights I might agree with is a company falsely representing that someone is endorsing a product. But that has more to do with representing facts appropriately and being honest. Everything else is just a case of the ownership culture creating feelings of entitlement.

          Once again, you should be able to use information obtained legally to make a movie about a basketball player, regardless of how his family feels. Now if the film was falsely implying that it was authorized by the estate, I would be right there with them in using the courts to get the film makers to withdraw that claim.

           

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            James Plotkin (profile), Aug 22nd, 2012 @ 7:58am

            Re: Re: Re: Re:

            Thank you for the well thought out reply.

            - As far as the real vs. legal fiction goes, I think we may be getting a little too metaphysical here. Almost all law, including real property, is a legal fiction at one level or another. There is nothing objectively "ownable" about property (note that by objective I mean true of the object in and of itself). There is nothing about a piece of land that suggests ownership. Proof of this is the way aboriginals view land. They had no concept of property before it was imposed on them. So I think any further discussion on the "existence of IP" is semantical and pointless.

            - As far as what's unenforceable and counter to human intuition, many laws are such. I think we should stop using the blanket term IP at this point. Trademark and to a lesser extent patent rights are quite enforceable. Copyright is somewhat special in that the advent of the Internet has drastically changed the way people consume copyrighted content.

            I still disagree with you in that I think it could be enforceable if a more suitable (and permissive...but that's just my opinion) copyright regime was installed in the place of the current approach. In both the US and here in Canada, governments have taken a hard line approach to copyright legislation. It doesn't have to be that way. It isn't an all or nothing; by which I mean that it isn't harsh copyright law or no copyright law. There must be a happy medium that both recognizes an authors right in his creation and consumers right as a member of the general public.

            Remember, IP laws in general are supposed to benefit society as a whole by balancing the interests of creators and users. If the current incarnations of these laws are failing, that doesn't mean that IP generally and copyright in specific fail as concepts. At the very least it doesn't logically follow.

            - Once again, information may be used freely. So can ideas. We're talking about something that is comparatively limited or small- the persona of a person. If a character in a movie by chance happens so have some similar physical traits to Wilt Chamberlain, the latter's right of publicity is not necessarily infringed. There is a legal test (which I won't get into here) that may be argued from both sides.

            The law isn't black and white. Even when it is, often a good litigator can plead either side of a legal question. I think many of those participating in this discussion should remember that. Whether or not a person has a cause of action is one question. However, even if they do, they still have to convince a judge (or jury) that they're right and that the other side's argument holds no (or at least less) merit. That's the beauty of the law...to me anyways...

             

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              Dave Xanatos, Aug 22nd, 2012 @ 10:59am

              Re: Re: Re: Re: Re:

              Moving away from existentialism, even if you take the legal framework away from tangible property, you still have something physical that you can take possession of and deny its use to others. The legal fiction of property ownership (and I would argue against that term here, but whatever) is actually an extension of that natural ability. The legal framework of ownership was put in place to prevent the anarchy that could exist in a society where I only own what I can physically defend. Our society has decided that legally enforced property ownership is preferred.

              - I personally feel it is a bad thing to have laws that are unenforceable. Laws that are generally unenforceable frequently become laws that are selectively enforced according to the whim of government or industry. They are laws meant to be used by the big guys against the little guys, and seldom if ever the other way around. IP law, in general and in specifics has become this. I agree with you that a more permissive legal frame work would be more enforceable. Where enforcement has been more effective is in the commercial sphere. Remove non-commercial infringement and codify fair-use in a much less objective manner and it would become orders of magnitude more enforceable.

              I like having a framework that creators can use to receive compensation and encourage more creation, and a This won't happen, however. Or if it did, it wouldn't keep. If copyright, patent, publicity, trade secret laws are kept in place, those receiving rents from them will continue to seek their expansion, and will use the rents they are granted to do so. So while I might favor curtailing copyright rather than abolition, history has made it clear that a limited copyright won't stay limited.

              -Copyright is supposed to serve society. I really don't see how protecting a family's ability to make money off a dead relative's legacy serves anyone but that family.

              And overall, I would prefer more black and white in law than the sea of ambiguity that we have now. The uncertainty helps lawyers, but not many others.

               

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                James Plotkin (profile), Aug 22nd, 2012 @ 12:06pm

                Re: Re: Re: Re: Re: Re:

                So it seems we agree on a lot.

                The only thing i take issue with is the following:

                "Copyright is supposed to serve society. I really don't see how protecting a family's ability to make money off a dead relative's legacy serves anyone but that family"

                You're clearly far too bright for this to have been genuine. Maybe it was a minor brain fail...

                Copyright IS supposed to serve the public. And you're right; in a reductionist way, the family's economic interest doesn't have anything to do with society writ large.

                But that's not what the copyright bargain implies. If a right is denied in a specific instance, and that instance becomes law, creators in general will have less incentive to create.

                This isn't directly applicable here because copyright law hasn't been invoked by the Chamberlain Estate. Right of publicity isn't quite the same thing.

                Now, if the judge throws out the Chamberlain Estate's claim I don't think people will be less motivated to play basketball. That would be an absurd conclusion. However, if a law is to be effective and predictable- so that society may base its actions on what they believe to be the state of the law- it must be evenly applied as much as possible.

                Now we're getting into the nature of common law reasoning and adjudication...Not the original topic of discussion and probably uninteresting to a lot of people reading the thread.

                I would love to continue this exchange one on one if you're game!

                 

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          MrWilson, Aug 22nd, 2012 @ 7:49am

          Re: Re: Re:

          For being a student of the law (albeit Canadian law I guess), it's odd that you get basic things like the purpose of copyright law wrong. It was created "to promote the progress" of science and public knowledge by incentivizing authors with a temporary monopoly, for the benefit of society. Monopolies are different than property. My ownership of actual property doesn't naturally expire.

           

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            James Plotkin (profile), Aug 22nd, 2012 @ 8:00am

            Re: Re: Re: Re:

            I refer you to my answer directly above. You wrote this before I had a chance to reply. Also, I'm well aware of the purpose of copyright law...I would appreciate if you didn't patronize me on a topic on which I actually have considerable knowledge and experience...

             

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            James Plotkin (profile), Aug 22nd, 2012 @ 8:14am

            Re: Re: Re: Re:

            Actually, your ownership of "actual property" does expire naturally, when you die.

            It's the intellectual property rights that expire artificially (when the statute says they do). In fact, copyright outlives the author by 70 years in the US and 50 years in most other common law jurisdictions like Canada.

            Your ownership of property may also be forcibly removed. For example, if you don't pay your taxes, your property will be seized.

            You make a false distinction between intellectual property and real or personal property when you say they aren't the same because one expires and the other doesn't.

            There have been many papers written on this and I promise you it isn't as simple as you make it out to be.

             

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              MrWilson, Aug 22nd, 2012 @ 6:45pm

              Re: Re: Re: Re: Re:

              I've read some of "those papers" and I'm telling you what I think regardless of what "those papers" say.

              The ownership of real property is not what expires when someone dies. The person dies having owned the property. The property then, typically, goes to the estate and/or an inheritance. The property can still be owned. You could theoretically pass a family heirloom down through indefinite generations barring any property seizures, thefts, property liquidations, etc.

              When copyright expires, barring retroactive extensions by Congress, it cannot be exclusively retained by one individual or corporation or trust anymore.

              It's not artificial that so called "intellectual property rights"/government-granted monopolies expire. The expiration of the monopoly is a natural trait since the inception of such artificial legal constructs and their duration has only been artificially inflated by Congress to protect, among other supposed assets, Mickey Mouse.

              Your ownership of property may be forcibly removed in the events of legal proceedings following due process (theoretically, but, sadly, not always) and scenarios of eminent domain or liquidation of assets to pay for owed amounts. And these are, by and large, the very rarest of exceptions to the ownership of real property. Just because the government can take your land to build a freeway and pay your "fair market value" for it or take your car to pay for taxes it says you owe, it doesn't justify calling expressions "property." If anything, that would be an argument for saying that real property rights are weaker than they are typically perceived to be rather than that "intellectual property rights" are stronger that I would argue they are.

              The expiration of "intellectual property" isn't the only reason why it's not real property. The very nature of the existence of copyright means that it can't be treated like real property. There's a very real distinction between copyright violation and theft. Real property can be stolen. Copyrighted material can't be. Physical media that bears a copy of copyrighted material can be stolen, but the charge is for the theft of the physical object, which can be property, rather than for the violation of the copyright.

               

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                James Plotkin (profile), Aug 23rd, 2012 @ 6:34am

                Re: Re: Re: Re: Re: Re:

                "The expiration of "intellectual property" isn't the only reason why it's not real property. The very nature of the existence of copyright means that it can't be treated like real property. There's a very real distinction between copyright violation and theft. Real property can be stolen. Copyrighted material can't be. Physical media that bears a copy of copyrighted material can be stolen, but the charge is for the theft of the physical object, which can be property, rather than for the violation of the copyright."

                No one ever said IP was real property (or at least I didn't). That's an indefensible claim...because it's wrong.

                That, however, doesn't mean that it isn't property at all. You're right when you make the distinction between real property and intellectual property in that the former can be stolen and the later can't. However, that distinction is much less important than you give it credit for. Whether I steal an object belonging to you or infringe your copyright and reduce your profits, I'm gaining something to your detriment. Jefferson's famous quote about lighting your flame by my taper aside, there are similarities as well as differences.

                To say that because infringement isn't theft because IP isn't property is to assume your conclusion. You've identified a difference between real and intellectual property, yes. But again, no one was saying they were exactly the same.

                "
                When copyright expires, barring retroactive extensions by Congress, it cannot be exclusively retained by one individual or corporation or trust anymore."

                Yes, this is also true. But you fail to explain why this means that it isn't property. A lot of real or personal property is not forever. We often consume things that we own, like food. Does that mean that we don't own the food we buy at the grocery store simply because it isn't permanent or (often) transmitted by will?

                You've once again assumed your conclusion by drawing a distinction. Again, no one said IP was EXACTLY like real property. If it was, there would be no need for a distinction.

                "It's not artificial that so called "intellectual property rights"/government-granted monopolies expire. The expiration of the monopoly is a natural trait since the inception of such artificial legal constructs and their duration has only been artificially inflated by Congress to protect, among other supposed assets, Mickey Mouse."

                I don't know what you were trying to prove here but I don't think it worked. As you seem to agree, the right itself is "artificial", right? So, as much of intellectual property is statutory creation, those same statutes determine the life of those rights. The same statute that "artificially creates" the right "artificially ends" the right. If this is wrong, then you haven't made a good case out for why. either way I think this is a largely unimportant point that isn't worth arguing any further...

                As far as the taxation ans eminent domain arguments, I wasn't too sure what you were getting at.

                I know you said you've read the literature. Maybe you should read it again, or different articles. All you've done is assume two conclusions and attack a silly distinction between "artificial" and "real" rights (whatever that's supposed to mean considering real and personal property rights are also determined by law, albeit usually common law in conjunction with statute...)

                 

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                  MrWilson, Aug 23rd, 2012 @ 11:55am

                  Re: Re: Re: Re: Re: Re: Re:

                  John Fenderson articulated a lot that I agree with already, so I won't rehash his arguments, but in general, I think it's important that the legal constructs included in the misnomer "intellectual property" not be grouped together since they're very distinct from each other and how the laws governing them apply.

                  I also think that property is not a good word to describe trademarks, copyrights, patents, or so-called "publicity rights."

                  I also don't consider them to be rights, regardless of that word being used to describe them in law and common parlance. They're government-granted monopolies that are entirely artificial in nature.

                  I naturally have a right to be alive and not be killed for unjustifiable reasons. I don't naturally have a right to keep someone from copying something that I've written. That "right"/monopoly only exists to incentivize me to create and publish works that are of value to society, "to promote the Progress of Science and useful Arts." That monopoly is also, in my opinion, invalid at this point because the social contract has been broken by the continual extension of copyright durations by legislators who aren't representing the people for whom the government nominally governs.

                   

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                    James Plotkin (profile), Aug 23rd, 2012 @ 12:44pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    First off, You're free to look at laws as whatever you want. But when you say you don't care what these things are called in the law or common parlance one wonders if you're living in a post-semantic world. Ok, that was a little rude. But my point stands. Consider them whatever you want. Call intellectual property "intellectual licorice" if you want! All you're saying is you don't like the verbiage, and that's your right.

                    Now one thing we seem to agree upon is that patent, trademark, copyright, plant breeders rights, integrated circuit topography etc. sound kind of funny grouped under a single "domain" of law. It's weird, I admit it. But again it seems you're reducing your argument to a semantic game. Who cares what people call it? It is what it is!
                    Sounds like you're trying to have your cake and eat it too.

                    Why do you have the right to be alive? Assuming you're not going to give a religious answer, there are a few ways you can go here. The natural law theory way (which I admit I have limited experience with) or the positive law theory way. Without getting too deep into it, if you exclude religion and dogma, your right to life is based on the social contract you refer to. That's another way of saying that society itself determines your right to life. So I disagree when you say you "naturally" have a right to X. Naturally...truly naturally, might is right. All the proof you need is out there in nature (natural...nature...get it?)

                    Now, as far as the natural right vs. artificial right (although you don't want to call it a right so...licorice?) the difference seems to be that in the right to life example, you feel that right is inherent. In the IP example, the right is granted by a democratically elected government. Granting that as true, I still fail to see why one is a right and the other isn't.

                    You've drawn a distinction between two KINDS of rights and I agree with you that they're not the same. But you're still assuming your conclusion...I can't take this any farther unless you clear up that logical fallacy.

                     

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      Anonymous Coward, Aug 22nd, 2012 @ 7:37am

      Re:

      Setting aside the fact that the law can deal with fictitious things very easily. You're really missing the point entirely. Copyrights, trademarks, patents, and publicity rights certainly exist in various arrangements at various points on this globe. What doesn't exist is the abstract concept of 'intellectual property.'

       

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    John Fenderson (profile), Aug 21st, 2012 @ 2:24pm

    I've learned a lot

    I've learned a lot about publicity rights as embodied in law from this thread. If the ones who are writing in support of these types of laws are correct, then I can tentatively say that the main thing I've learned is that publicity rights are harmful and have to go away completely.

     

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      James Plotkin (profile), Aug 22nd, 2012 @ 6:55am

      Re: I've learned a lot

      Hey John,

      Why is it that you think these rights are harmful? Not that I agree or disagree, just curious.

       

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        MrWilson, Aug 22nd, 2012 @ 8:04am

        Re: Re: I've learned a lot

        I can't speak for John, but I for one can't see publicity rights (especially for dead people) being of any benefit except to the wallets of people who by genetic lottery are related to famous and/or historically or culturally notable people. Such "rights" can only serve to stifle free speech, and more importantly, the depiction of objective fact. What interest should the government have in allowing people to block the depiction of fact in areas unrelated to national security or private information?

         

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          James Plotkin (profile), Aug 22nd, 2012 @ 8:51am

          Re: Re: Re: I've learned a lot

          Fair enough.

          Free speech is a right. so too is the right of publicity. So is copyright etc.

          Most rights are not permanent and even those that are (like freedom of speech) are not absolute. When doctrines of law arise from a body of court decisions (called the jurisprudence) they do so because judges and juries are interpreting these rights and which ones should win out when they enter into conflict with one another. If you tihnk that the freedom of speech should trump the right of publicity in all instances, that's fine. It's an acceptable position and I don't think it's ridiculous.

          However, you must realize that the law is based on social and doctrinal propositions. Judges don't just arbitrarily create rules about intellectual property or anything else. If the law says "x", it says so because x is justified by social and doctrinal propositions. Without digressing into a full blown lecture of common law adjudication, that's more or less the point.

          So again, your opinion is valid. But it would be fair to say that the law is such because most people don't or didn't share your view on this particular issue.

          Personally, I think the freedom of speech must be tempered by all the other rights that rub up against it.

           

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            John Fenderson (profile), Aug 22nd, 2012 @ 8:54am

            Re: Re: Re: Re: I've learned a lot

            Free speech is a right. so too is the right of publicity. So is copyright


            Free speech is a right of a different type than the other two. Although copyright is allowed for in the constitution, it's not a full-fledged right like free speech: it's a social compromise, supposed to be be for a specific purpose, with limitations, not a natural right. Publicity rights are not rights, they are legal privileges.

             

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              James Plotkin (profile), Aug 22nd, 2012 @ 9:04am

              Re: Re: Re: Re: Re: I've learned a lot

              Oh now...I think this is becoming a matter of semantics very quickly...

              What is the difference between a legal right and a legal privilege?

              Natural law theory aside (because I doubt that's what you meant) they mean exactly the same thing. a right or privilege conferred by law is tantamount to society saying "you may do..."

              Is the freedom of speech a right inherent in all humans? I think certain totalitarian governments may disagree with you. Are you right and they wrong? No. It's a matter of which society you live in. If you live in western society, free speech is very important (though still not overriding). If you live elsewhere, other rights or obligations may take precedent.

              If you want to say that as an American, freedom of speech trumps property rights you can say that; although I don't even think that is uncontroversial. Many of your countrymen might disagree with you.

              SO you're right. Free speech is a right that has certain easily recognizable differences with property rights. But that doesn't make it superior. And if it is, you haven't shown why other than to say that you value it so.

              I appreciate your position on this. I just respectfully disagree.

               

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                John Fenderson (profile), Aug 22nd, 2012 @ 10:20am

                Re: Re: Re: Re: Re: Re: I've learned a lot

                I'm speaking of rights as embodied in the US Constitution.

                a right or privilege conferred by law is tantamount to society saying "you may do..."


                This is where we disagree. I think there's a huge, not semantic, difference between a right and a privilege. A "right" is an act that the Constitution forbids the government from impinging on. It is not something you have through some kind of permission from the government. A "privilege" is something that the government is allowing you to do.

                Is the freedom of speech a right inherent in all humans?


                That's rather a different discussion, I think.

                If you want to say that as an American, freedom of speech trumps property rights


                I'm saying no such thing. Although I don't consider IP to fall into the same category as "property rights", let's ignore that for the moment.

                I don't think that any right "trumps" any other. Rights conflict with each other all the time, and when they do then a balance must be found. In the case of publicity rights, it seems to me that we're balancing free speech rights with nothing at all: I don't see any right on the other side that is being infringed in a way that cannot be fixed with existing law. So in this case, free speech isn't trumping anything. It's being restricted for no reason.

                 

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                  James Plotkin (profile), Aug 22nd, 2012 @ 11:27am

                  Re: Re: Re: Re: Re: Re: Re: I've learned a lot

                  "I don't think that any right "trumps" any other. Rights conflict with each other all the time, and when they do then a balance must be found."

                  I agree 100% John! I think we're singing the same tune here.

                  I still take issue with your definition of rights. It isn't that it's wrong or anything. It's just (in my humble opinion) unduly restrictive.

                  By "right" it seems you mean constitutional right. the Constitution (in Canada and I imagine most everywhere) is a law. In fact, it's the supreme law under which all others must comply to be valid. If not, they are deemed unconstitutional and struck down or amended.

                  SO it seems your distinction between right and privilege is more temporal than anything. After all, the government passed the constitution (a law). A later government passed the copyright act (or whatever state statute houses the right of publicity in a given jurisdiction).

                  So rights and privileges (by your definition) are both "powers" (for no other reason than choosing a word other than right or privilege). The difference between them is that the former is a law enshrined in a constitutional document and cannot be easily repealed (and is therefore applicable to all, even the government) and the other is a normal law that may or may not be applicable to the government and may be repealed by normal legislative process.

                  Do I read you correctly?

                   

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                    John Fenderson (profile), Aug 22nd, 2012 @ 11:33am

                    Re: Re: Re: Re: Re: Re: Re: Re: I've learned a lot

                    After all, the government passed the constitution (a law).


                    Ahh, we have an interesting difference in perspective here.

                    The government did not pass the Constitution at all. In fact, it's the exact opposite: the Constitution defined and created the government. There was no US government before the US Constitution. The Constitution is not mere law, it's more like metalaw: it sets the framework in which laws operate.

                    The only reason copyright law is possible at all in the US is because the Constitution provides for it (but does not mandate it). This was required because copyright inherently impinges on Constitutionally-protected rights, so could not happen without a specific exception being carved.

                     

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                      James Plotkin (profile), Aug 22nd, 2012 @ 11:53am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re: I've learned a lot

                      Hahaha! awesome!

                      Ok. now, as a Canadian, my knowledge of the American constitution and your revolution is limited (although I think I may know more about it than many Americans :)) so please correct me where I'm wrong.

                      To my understanding, the US constitution was written by your founding fathers (Adams, Jefferson, Franklin, Hamilton...). The revolutionary war was over. A government was formed.

                      Your declaration of independence, on the other hand, was written by people (hence "we the people") who were up until that point still British subjects.

                      If I'm correct, then I fail to see how the constitution was not a law. More specifically Article 1 section 8 clause 8 (the IP clause) is law. metalaw in the sense that it is paramount over all other laws and even defines them, but law none the less.

                       

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                        John Fenderson (profile), Aug 22nd, 2012 @ 12:53pm

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: I've learned a lot

                        The government that was formed after the revolution is not the same government as exists now. That government failed for various interesting reasons. The US Constitution was drafted to form the government that would replace it.

                        The primary characteristic that differentiates the Constitution from ordinary law is that the Constitution exists primarily to define the limits of governmental power.

                        To oversimplify a bit...

                        The Constitution is a set of laws, but a set of laws for the government itself, not for the people. If you look at how even the Bill of Rights is worded, it isn't about "granting" rights to the people (the assumption is that they have these rights by virtue of being human) but telling the government what it can't do. Freedom of speech, for example, is "No law shall be passed abridging..."

                        Non-constitutional law is generally law for the people, not the government.

                         

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                          John Fenderson (profile), Aug 22nd, 2012 @ 1:02pm

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: I've learned a lot

                          Just wanted to add the main thing that makes the Constitution more like meta-law: The only reason the government has the authority to create law at all (or any other authority, for that matter) is that the Constitution specifically grants it.

                           

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            John Fenderson (profile), Aug 22nd, 2012 @ 8:57am

            Re: Re: Re: Re: I've learned a lot

            But it would be fair to say that the law is such because most people don't or didn't share your view on this particular issue.


            I disagree. The law quite often is completely disconnected from people and exists without their knowledge, agreement, or specific consent. What's fair to say is that most people don't know about most laws.

            Personally, I think the freedom of speech must be tempered by all the other rights that rub up against it.


            I agree 100%!

             

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        John Fenderson (profile), Aug 22nd, 2012 @ 8:51am

        Re: Re: I've learned a lot

        Firstly, because the only legitimate purpose of them that I've heard about is to prevent people from implying that someone endorses something that they do not. It seems that trademark laws should cover that pretty well, though, so I don't see the need for publicity rights.

        Since publicity rights clearly and easily restrict the free speech rights of others, a balance should be struck. But as the one legitimate benefit of publicity rights is already covered in other law, it's hard to see any impingement of free speech rights can be called a good balance.

        It seems that the entire purpose of publicity rights is to restrain free speech rights: to be able to control to some degree what is published about the person. Without a good, solid reason for this, this sort of law is all cost and no gain, so I consider it harmful.

         

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          James Plotkin (profile), Aug 22nd, 2012 @ 8:55am

          Re: Re: Re: I've learned a lot

          John,

          You would be right, except that trademark law does not cover this type of activity. That's precisely why states make laws to govern this, because trademark isn't adequate.

          Trademarks associate wares or services with their commercial source. It doesn't protect against the unauthorized use of a persons identity, unless that identity is also a trademark.

          So if Mr. T decided to open a company where the company logo is his smiling face with a thumbs up (and the gold chains etc.) and someone sued that image, they would be infringing both Mr. T's right of publicity (under tort) and his trademark (under trademark law).

          There are different remedies, legal tests and criteria for each. Again, not all IP is the same.

           

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            John Fenderson (profile), Aug 22nd, 2012 @ 9:30am

            Re: Re: Re: Re: I've learned a lot

            unless that identity is also a trademark.


            Yes, so trademark it.

            I still missed where you explain what trademark doesn't cover here. Your Mr. T example is covered very well under trademark law. Why is there a need for a publicity rights law?

             

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              James Plotkin (profile), Aug 22nd, 2012 @ 9:56am

              Re: Re: Re: Re: Re: I've learned a lot

              Because unless Mr. T uses his image in association with a category (or categories) of wares or services, trademark doesn't apply.

              As I said, trademark is around to protect the association of wares or services with their origin. Right of publicity protects against the unauthorized appropriation of a persons identity.

              I see how it can be confusing; but they really are different things. Don't defer to my authority on this. Please feel free to read the legal doctrine. I find that it's a pretty interesting topic!

               

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                John Fenderson (profile), Aug 22nd, 2012 @ 10:27am

                Re: Re: Re: Re: Re: Re: I've learned a lot

                But Mr. T, as with all celebrities, is using his identity in association with a category of commercial wares or services.

                I'm not really arguing what the legal doctrine is. I'm arguing that the doctrine is wrong (in both a "best policy" and ethical sense) and overbroad. And intentionally so, when you look at the arguments that led up to this whole publicity rights problem.

                 

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                  James Plotkin (profile), Aug 22nd, 2012 @ 10:44am

                  Re: Re: Re: Re: Re: Re: Re: I've learned a lot

                  What wares or services?

                  I don't know. If you think the doctrine is a bad one that's cool. If you think it's bad policy or unethical that's cool too. Write your member of congress!

                  Personally, I don't think it's "wrong". It's capable of being interpreted in ways that produce socially undesirable effects. But the doctrine itself isn't to blame for that.

                  One thing is sure. The doctrine isn't "wrong" if wrong means incongruent with the other domains of law it overlaps with or rubs up against. I hope the Mr. T example cleared up why trademark is ill equipped to deal with this question.

                  Beyond that, I respect your opinion on whether or not it's a "good" or socially congruent law.

                   

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                    John Fenderson (profile), Aug 22nd, 2012 @ 11:27am

                    Re: Re: Re: Re: Re: Re: Re: Re: I've learned a lot

                    Well, I think the law is bad because (and I'm not being hyperbolic on purpose here) I cannot see any social benefit to this law that isn't available through existing law. Since this law requires an impingement on Constitutional rights, a clear social benefit must result for it not to be "bad".

                    But we can disagree on this. It's OK. :)

                    What wares or services?


                    Entertainment. And countless '80s lunchboxes, etc.

                    I hope the Mr. T example cleared up why trademark is ill equipped to deal with this question.


                    Actually, no, it didn't at all. I do not see why trademark does not cover that problem.

                     

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                      James Plotkin (profile), Aug 22nd, 2012 @ 11:34am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re: I've learned a lot

                      oy...

                      Perhaps I'm just not good enough at explaining this. I can't really put it any other way.

                      The design on the lunchbox is a trademark. It's a trademark that uses the image of Mr. T. Even if it weren't on a lunchbox (not associated with wares or services) it would still attract protection under the right of publicity.

                      Also, the "entertainer" thing doesn't qualify him. He isn't a walking trademark (even though he really is...love Mr. T...)

                      For a deeper (yet not overly scholarly) explanation I recommend "Intellectual Property Law" by David Vaver. He's a well respected professor here in Canada on IP. His book may shed some light on this for you.

                       

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                        John Fenderson (profile), Aug 22nd, 2012 @ 11:49am

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: I've learned a lot

                        OK, let me try a different way then.

                        Let's ignore the question of whtehr trademark law as currently interpreted covers this or not. My point is, really, that it could. This is exactly the sort of situation trademark law is intended for in the first place.

                        If things have become too mired for it to be used this way, then by all means have a publicity rights law -- but that publicity rights law should be nothing more than trademark law applied to a human identity as a whole.

                        The publicity rights laws we have now go far beyond that. That is what I object to.

                         

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                          James Plotkin (profile), Aug 22nd, 2012 @ 12:12pm

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: I've learned a lot

                          I understand completely! Well articulated!

                          It seems then that your bone is less with the fact that these rights exist. Rather you're upset that this doctrine developed on it's own and has mutated into something you don't like.

                          Still, trademark law and publicity rights are two different things. It's inaccurate to say that right of publicity is trademark as applied to people. Copyright law could cover trademarks...but it doesn't, because it's copyright law.

                          I don't want to lecture you on law and quite frankly you seem to have a pretty good understanding as it is. There are finer points, however, that make the distinction between the two doctrines valid.

                          Still, your objection to the current state of the law from a substantive viewpoint is no less valid. On your objection as to the structure of the law (trademark vs. right of publicity) I would ask that you defer to me :)

                           

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                            John Fenderson (profile), Aug 22nd, 2012 @ 12:41pm

                            Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: I've learned a lot

                            On your objection as to the structure of the law (trademark vs. right of publicity) I would ask that you defer to me


                            I do, in fact, defer to you. BTW, I've greatly enjoyed this exchange! I have learned some valuable things, and I think we understand each other's perspective better for it. Thank you!

                             

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            James Plotkin (profile), Aug 22nd, 2012 @ 10:07am

            Re: Re: Re: Re: I've learned a lot

            "and someone sued that image"

            I meant "and someone USED that image". Typo. Sorry for the confusion!

             

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