The Rise Of A New Intellectual Property Category, Ripe For Trolling: Publicity Rights

from the free-speech-isn't-free-when-a-celebrity's-involved dept

Recently, we’ve been highlighting more and more publicity rights lawsuits, because they’re becoming quite popular these days. Eriq Gardner has an excellent, long and detailed article all about publicity rights, going over the history of it: which involved some common law/case law rulings, and now (more and more) is being driven by state laws (which are often pushed and passed by the industries who are cashing in on these claims). Basically, these are a form of “intellectual property rights” on almost any aspect of a person — their likeness, appearance, voice, mannerisms, gestures, etc. — used for “commercial use,” (which we’ve noted recently is such an ambiguous term these days).

Gardner does a good job highlighting folks on all sides of the publicity rights debate, starting with a lawyer who’s made quite a career out of it, who admits to trolling the internet for anyone using a client’s name on their website in a way that he might claim they’re getting an unfair commercial advantage. That same lawyer, at the end of the article, admits that there’s probably a big First Amendment “slippery slope” problem, but he doesn’t seem too bothered by it.

But those First Amendment issues are pretty big. As publicity rights claims have become more popular, they’re constantly being stretched and expanded:

Most especially, practitioners believe this area has grown hot because of a lack of acknowledged boundaries. A combination of generous laws, ambitious plaintiffs and no consistent bright-line defenses against claims means that attorneys are free to take rights conferred, find jurisdictions where the protections are most generous, and make a claim.

“The sky’s the limit,” says Indiana University law professor Marshall Leaffer. “Over the years, we’ve seen publicity rights claims being made on someone’s voice, on a golfer’s swing, even on a sports car identified with a particular racer. A person’s likeness covers a lot. Rights of publicity claims are seemingly impeded only by a lawyer’s imagination.”

And when something is impeded only by a lawyer’s imagination, serious problems come up, leading to all sorts of wacky lawsuits:

Over the years, there have been a number of famous envelope-pushing cases: In a 1985 case, Woody Allen sued over a look-alike in a commercial; Bette Midler later sued over a sound-alike in a commercial; Vanna White brought a VCR manufacturer to court in 1991 after it depicted in a commercial a futuristic Wheel of Fortune host as a robot in a blond wig; in 1993 the actors who played Norm and Cliff in Cheers sued Paramount Pictures for licensing look-alike robots at airport bars around the world; in 2001, the estate of the Three Stooges won a suit filed against a celebrity lithographer for depicting them as “art” on T-shirts; and in 2007, Major League Baseball lost a suit against a provider of fantasy sports games over the use of names and statistics of its ballplayers.

In recent months, the group No Doubt sued video game publisher Activision because it was troubled that game-players could make lead singer Gwen Stefani’s avatar do obnoxious theatrics–like singing about sleeping with prostitutes. The rapper 50 Cent sued Taco Bell over an unlicensed promotion where the fast-food chain asked him to change his name for one day to 79 Cent, 89 Cent or 99 Cent–the cost of its menu items. And, perhaps most infamously, Lindsay Lohan sued E-Trade over a Super Bowl commercial that depicted a “milkaholic” baby named Lindsay, who the actress claimed had been based on news of her troubles with the law.

Of course, a big part of the problem is judges willing to decide these cases with questionably weak First Amendment reviews, such as the recent ruling by a judge in Tennessee saying that a film about a public figure “isn’t necessarily protected under the First Amendment.”

And, of course, you can’t forget the lawyers who are clearly in this to make a quick buck:

Just as important, in many states such as California, defendants often must pay attorney fees to the plaintiff if a claim is successful.

“That’s pretty delicious,” says Neville Johnson, an entertainment lawyer in Beverly Hills…. “The more you fight us, the more you’ll have to dig into your pocketbook. This certainly represents a growth area for our firm.”

There’s a ton more in the article, including how some are using publicity rights claims to effectively “hide” other types of cases (defamation, trademark, etc.) that have much more solid legal boundaries, where those actual claims wouldn’t succeed, but with this wide open field…

If you’re interested in these issues, and believe in the First Amendment, Gardner’s full article is well worth reading. It’s certainly another area of so-called “intellectual property” stepping in and interfering with the basics of free expression.

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Comments on “The Rise Of A New Intellectual Property Category, Ripe For Trolling: Publicity Rights”

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out_of_the_blue says:

Well, these "publicity rights" lawyers make a strong case for

mob hits to rub them out. That’s probably most cost-effective — and least risk — way to fight them. [I was always intrigued by a notion from “The Assassination Bureau” book and movie of the 70’s, in which the head of such only took a contract after judging the matter and finding that victim did indeed deserve to die for offenses committed. Of course, that’s in a fantasy world where money isn’t the sole goal.]

Anyhoo, on the positive side, I think using a picture of a face should definitely be under a person’s control, even (regrettably) for “celebrities” who are rewarded as compensation for being in the public eye. Caricatures, or a significant total that amounts to a definite ID for the audience, maybe. Golf swings, no.

Mike42 (profile) says:

Adrew Sisters?

Does anyone under 30 know who the Andrew Sisters are? Abbot and Costello? Cary Grant? Claudette Colbert? No? How about W.C. Fields? Jimmy Durante? Still no?
They were all huge in the 70’s, thanks to local station reruns. Now you can’t get their work, thanks to copyrights. Using their likeness and catch phrases in commercials would almost certainly generate interest in a new generation of consumers, but their estates are far too short-sighted for that.

This is what bothers me the most. Not freedom of speech (which is offensive), but the erosion of our culture.

Anonymous Coward says:

Watch the new show on Wednesday night. The Defenders. It portrays Judges exactly like I think of them. Crooked, whiny, spoiled little people that spout lots of bull and twist the law to their own little lala land. Your legal decision relies entirely on where you get that decision and the prejudices for that local area.
Want good judgments on patent infringement? Go to East Texas.
Want to make sure someone fries for murder? Try them in Texas.
Want to sue on corporate matters? Go to Delaware.
Want a liberal court? Go to California.
It’s simple, you open a branch office in the state or area where you need the good judgement. You donate a little to the Little League and other local causes and get known as a good local company. Then file your lawsuit. Good lawyers now are like location agents for the movies. Find the right location, file the papers and win the case. Just look up the latest news on Local and State political corruption. All you have to do is pass out money.

hank says:


I wonder if BP would sue The Wall Street Journal (News corp) if it sold newspapers that ran ads critical of BP gulf oil operation. After all, the newspaper is a for profit commercial firm that sells ads, and gains readership by “riding on the back of BP’s public notoriety”. Taken to an extreme, it’s easy to see how this real messy fast.

Scotty (profile) says:

Obviously way off topic, but...

Seriously, Mike, do you ever sleep?

I’ve been an avid techdirt reader for years now. I’ve never been one to pay much attention to the author’s name (sorry) but a few months ago, for whatever reason, I started paying more attention here. I just realized that I’ve probably read more of your words than my top two or three favorite novelists combined. Thanks for making my work days always suck a little less. Now go take a nap!


Joe Drama (user link) says:

Publicity Rights of Oneself

Interestingly enough, I understand where the celebrities and people are coming from. They do need to protect their “trademarks” as in their own actions/likeliness because it is the means of their income and livelihood. It would be very unfortunate, for instance, if someone were to steal the Michael Jordan “fly in the air” pose and, eventually, take away from the “air” of Air Jordan.

Another example, would be certain actors who act a certain way or talk a certain way. Let’s take for example the actor Lil Wayne. If you listen to hip hop music, you’ll find that a lot of the actors now attempt to pronounce words and talk in the same tone/accent as Lil Wayne. This is extremely humorous because they don’t really talk like that. However, it’s also bad for Wayne because they might be able to steal listeners from him by sounding like him while he is in prison for a year.

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