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Judge Says Parts Of Washington's Publicity Rights Law Are Unconstitutional

from the didn't-see-that-coming dept

Well, here’s a pleasant surprise. We’ve been talking a lot about the rise of publicity rights as a relatively “new” form of intellectual property, driven by a collection of confusing state laws that create a poorly defined “right” for someone to block the use of their likeness (and, in some cases, their appearance, voice, mannerisms, gestures and more…). This has given rise to a new group of what can best be called “publicity rights trolls,” looking for ways to exploit these laws for cash. There are some cases making their way through the courts that question whether or not publicity rights violate the First Amendment, but in a surprise ruling up in Washington, a federal judge has ruled that the state’s publicity rights law is unconstitutional.

Unfortunately, the ruling isn’t on the larger First Amendment issues, but on a separate issue. The case is complex, to say the least, involving a variety of claims between the heirs of Jimi Hendrix and a Washington-based company that sells Jim Hendrix-related merchandise. There are legitimate trademark claims in there, which resulted in a limited preliminary injunction, which Hendrix’s heirs pretended said a lot more than it really said in convincing a retailer to stop purchasing the other firm’s merchandise. That resulted in claims of defamation back. Then, Hendrix’s heirs tried to avoid even mentioning Washington’s publicity rights law, even though they seem to rely on it for part of their argument. And, oh yeah, part of the issue is that Washington’s law got updated a few years ago, switching from one where publicity rights only apply to the living, to one where they pass on to heirs. As I said, the case is complex — you can read all the details in the ruling embedded below.

Instead of the First Amendment issues, this case hinges on the question of whether or not the law can apply to celebrities who live (or lived at the time of their deaths) outside of the state. The Washington law says that it can apply to anyone, even if they didn’t live in the state at the time of their death. The court notes that this creates some due process questions, such as by enabling the ability to “forum shop.” Separately, this court finds this same issue violates the Due Process Clause and the Dormant Commerce Clause by creating an effective “national” publicity rights law, well outside of Washington’s borders.

In the end, the specific ruling is a bit down in the legal weeds (and likely will be appealed), but it’s nice to see at least some pushback on publicity rights laws…

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Comments on “Judge Says Parts Of Washington's Publicity Rights Law Are Unconstitutional”

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Jay says:

Re: Re:

Well, we have this really complex thing called journalists.

They don’t care about your bad hair day, your pudgy build, or the scruffy beard you forgot to shave for three days before you shaved your legs. They want the job and do it for less pay than Peter Parker.

And judging from some of the shots they’ve gotten of Paris Hilton, Charlie Sheen, and Snooki, they can do it for a lot cheaper than you think.

Anonymous Coward says:

“This has given rise to a new group of what can best be called “publicity rights trolls,” looking for ways to exploit these laws for cash.”

What a load of crap. Mike, the government cannot stop you from writing this blog, you have a right to do so. You also have advertising on this page so that you can make money. You are exploiting your right to have this blog to make money. That makes you a ‘first amendment troll’. Get off the internet you dirty troll.

Anonymous Coward says:

Re: Re: Re:

No Mike is exploiting the first amendment, no one said he was exploiting publicity rights. Work on your reading comprehension.

Really, I just think the name calling that goes on around techdirt is ridiculous. If techdirt does not like you or what you are doing then you will be called names. That is not a good way to promote one’s position.

Also, whenever there is a lawsuit involved techdirt likes to pick on the party that brought the suit – even when that party is working within the law. If you don’t like the law then complain about the law, not about the people working within the law. If you want to call someone names, maybe start with the people that made the law that you don’t like.

I find it interesting that there are laws that allow Mike to have this web site and to make money from this web site and there is nothign wrong with that. But yet someone else that works within the law to make money is ‘exploiting’ the law. What a bunch of crap.

CarlWeathersForPres (profile) says:

You realize there is a right to privacy, and the only first amendment right you have is if someone is a public figure, which is a very murky term. Essentially, you can pretty much say anything about politicians, or critique someone for how they put themselves into public (e.g. calling Jenny McCarthy a moron for thinking vaccines are bad).

As for the broader policy issue, do we feel the need to put Marylin Monroe on everything because we “should be able to” and there’s freedom of speech? Why should we have the right to use someones face/likeness to publicize our own product without their consent?

Thomas T Osinski Jr. (user link) says:

Complex to put it lightly. Although its true that the court did not reach the First Amendment, which arguably would require an even further striking of the law, anyone that cares should jump to footnote 25. The court basically says it would have found it a taking had we developed some of the facts in a more uncontested fashion. Namely the idea that when a Publicity Statute grabs a likeness out of the public domain, and people are invested in that likeness (purchase of photo catalogs,commissioning of art pieces), its a taking of private property.

It seems to me that its not to far of a leap to to Free Speech grounds, since its also a “taking” of images etc out of the marketplace of ideas.

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