While we often talk about copyright, patents and trademarks as "intellectual property" (a misnomer, of course) there are some other related areas as well. One that has been growing in importance is the idea of "publicity rights" as a separate "right." The issue, of course, is usually about whether a company can use the likeness of someone for commercial purposes without their permission. But that issue is getting more and more complicated as technology gets better and better. In the last few decades, for example, there's been a growing trend to use famous dead people
, such as John Wayne, Lucille Ball and Fred Astaire in commercials. But those mostly involved taking clips of those actors from existing films/TV and splicing them into a commercial (with permission from their estates). However, as some lawyers have been noting, with better and better digital technologies, this issue is becoming more important
as it's now possible to digitally recreate someone for the purpose of film. Or, say, a video game. Apparently in Guitar Hero 5
, singer Kurt Cobain has been... well... reanimated
, and some find it rather distasteful (especially since he sings a bunch of songs you wouldn't expect him to sing).
Among those most upset? Cobain's widow, Courtney Love, who is threatening to sue Activision for breach of contract
. Since she's claiming it's a breach of contract issue, there are (obviously) plenty of questions over what's in the actual contract. Still, like with patents and copyright, there is plenty of concern about how far publicity rights extend. In the Law.com article above, it notes that publicity rights didn't used to apply to the deceased, but that's changed. More troubling?
Initially, the right covered only a person's name and likeness. But courts expanded the protected "persona" to cover a variety of elements. Bette Midler and Tom Waits were allowed to pursue claims against advertisers featuring singers using similar vocal styles. Vanna White and George Wendt were allowed to sue companies using robots evoking their roles as the letter-turner and barfly in "Wheel of Fortune" and "Cheers" respectively. Lothar Motschenbacher was allowed to claim damages based on an advertiser's use of a distinctively ornamented racing car.
That certainly reflects the expansion of copyright and patents -- beginning narrowly focused and then expanding over time. I can certainly understand the desire for a "publicity right," but I wonder if it's not better handled through other laws -- such as trademark, fraud and contract law, rather than creating separate boundaries for "publicity rights." I can understand why Love is upset about the use of Cobain's image, but at some point you have to wonder whether it really makes sense to limit such uses. As the technology gets better and better, the legal questions are only going to get more complicated -- and, once again, we're likely to see the reach of such rights extended, perhaps in ways that make little sense.