The Right of Publicity: Using the Famous, Infamous, and Regular Folks in Art

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  • 1. The Right of Publicity: Using the Famous, Infamous, and Regular Folks in Art Presented by: Keith Jaasma Patterson & Sheridan, LLPCalifornia  Texas  New Jersey  North Carolina
  • 2. 2
  • 3.  “We‟re not saying President Obama endorses Weatherproof apparel.” 3
  • 4.  “The White House has a longstanding policy disapproving of the use of the president‟s name and likeness for commercial purposes.” 4
  • 5.  SweetSasha and Marvelous Malia PETA Van 5
  • 6. Keller v. EA Sports 6
  • 7. Bollea v. Post Foods http://www.youtube.com/watch?v=XFD7Rp3btI8 7
  • 8. Lohan v. E-Trade http://www.youtube.com/watch?v=lEXZ2hfD3bU 8
  • 9. 9
  • 10. What is the Right of Publicity? 10
  • 11. What is the Right of Publicity? The right of an individual to control the use of his or her name or imagein advertising or other commercial enterprises 11
  • 12. Zacchini v. Scripps-Howard Broadcasting Co. (1977) Zacchini sued TV station for violating his right of publicity by broadcasting his entire 15-second “Human Cannonball” act on the news 12
  • 13. Zacchini v. Scripps-Howard Broadcasting Co. (1977) TV station asserted First Amendment Defense Rejected by the U.S. Supreme Court  “[T]he State‟s interest in permitting a „right of publicity‟ is in protecting the proprietary interest of the individual in his act in part to encourage such activity….[T]he State‟s interest is closely analogous to the goals of patent and copyright law, focusing on the right of the individual to reap the reward of his endeavors….” 13
  • 14. Protectable Interests:Beyond Names and Photographs of Celebrities 14
  • 15. “Distinctive Voice”Midler v. Ford Motor Company (9th Cir. 1988) Midler turned down Ford‟s offer to use her recording of “Do You Want to Dance” for commercial Ford hired backup singer to perform the song and mimic Midler “[W]hen a distinctive voice of a professional singer is widely known and is deliberately imitated in order to sell a product, the sellers have appropriated what is not theirs and have committed a tort in California.” 15
  • 16. “Distinctive Voice”Waits v. Frito Lay(9th Cir. 1992) Song sung in the “style” of Tom Waits Allowed punitive damages, finding malice where Frito Lay was aware of his opposition to commercial endorsement and damage to his artistic integrity. 16
  • 17. NicknamesHirsch v. S.C. Johnson & Sons (Wisc. 1974) Elroy “Crazylegs” Hirsch – football star in the 1940s and 50s. Could maintain claim against S.C. Johnson for use of “Crazylegs” on shaving gel 17
  • 18. Catch-PhrasesCarson v. Here’s Johnny Portable Toilets (6th Cir. 1983)“If the celebrity‟s identity iscommercially exploited, therehas been an invasion of hisright whether or not his „nameor likeness‟ is used. Carson‟sidentity may be exploited even ifhis name John W. Carson, orhis picture is not used.” 18
  • 19. Tools of the TradeMotschenbacher v. R.J. Reynolds (9th Cir. 1974) Winston ad used photo of Motschenbacher‟s car, altering number to “71” and adding a spoiler Car had distinctive white pinstripe and oval, instead of circle, around number Court ruled that Motschenbacher was identifiable from the photo even though his facial features were not visible 19
  • 20. “Identity”White v. Samsung (9th Cir. 1992) California has both statutory and common law causes of action for living individuals White could not maintain statutory claim for misappropriation of “likeness” Could maintain common law claim for misappropriation of her “identity” Multiple Texas courts have followed to help define scope of “likeness” 20
  • 21. “Identity”Wendt v. Host International (9th Cir. 1997) Question for jury whether robots in hotel bars were the likeness or appropriated the image of Wendt and Ratzenberger 21
  • 22. The Right of Publicity in Texas 22
  • 23. Rights for the LivingCommon Law Tort of Misappropriation of Name or Likeness: The defendant appropriated the plaintiff‟s name or likeness for the value associated with it, and not in an incidental manner or for a newsworthy purpose; The plaintiff can be identified from the publication; and There was some advantage or benefit to the defendant. 23
  • 24. Rights for the DeceasedTexas Property Code, Chapter 26 Prohibits use of a deceased individual‟s name, voice, signature, photograph, or likeness . . . “ . . . in any manner, including, in connection with products, merchandise, or goods; or for the purpose of advertising, selling, or soliciting the purchase of products, merchandise, goods, or services.” Last for 50 years in Texas Lasts longer in other states  Indiana – 100 years  Tennessee – As long as it is used 24
  • 25. Rights for the DeceasedTexas Property Code, Chapter 26 PERMITTED USES. (a) A person may use a deceased individuals name, voice, signature, photograph, or likeness in: (1) a play, book, film, radio program, or television program; (2) a magazine or newspaper article; (3) material that is primarily of political or newsworthy value; (4) single and original works of fine art; (5) an advertisement or commercial announcement concerning a use under this subsection. 25
  • 26. When is art protected? Artistic expression? Artistic Expression? 26
  • 27. Winter v. D.C. Comics (Cal. 2003) The “Autumn Brothers” depicted in Jonah Hex comic book. “Transformative” depiction. 27
  • 28. Ali v. Playgirl (S.D.N.Y. 1978) Playgirl published drawing of nude black man in boxing ring that resembled Ali and also referred to “the Greatest” Drawing found to be his “likeness”
  • 29. Rights for the DeceasedTexas Property Code, Chapter 26 PERMITTED USES. A media enterprise may use a deceased individuals name, voice, signature, photograph, or likeness in connection with (1) the coverage of news, (2) public affairs, (3) a sporting event, or (4) a political campaign without consent. Any use other than the above by a media enterprise of a deceased individuals name, voice, signature, photograph, or likeness shall require consent if the material constituting the use is integrally and directly connected with commercial sponsorship or paid advertising. No consent shall be required for the use of the deceased individuals name, voice, signature, photograph, or likeness by a media enterprise if the broadcast or article is not commercially sponsored or does not contain paid advertising. 29
  • 30. Parody & 1st Amend. --Bush v. Viacom Bush appeared on 700 Club to detail his weight loss using Pat Robertson‟s Diet Shake Brief clip appeared on Daily Show Image not used for its “value” because used for parody First Amendment defense likely as well 30
  • 31. Documentaries -- Benavidez v. Anheuser Busch, Anheuser Busch produced documentary about Hispanic war heroes, including Roy Benavidez Only mention of Anheuser Busch was in closing credits Video may have been shown at some hospitality centers “Undoubtedly Anheuser Busch…may enjoy increasedgoodwill in the Hispanic Community as a result of theproduction and showing of „Heroes.‟ This incidental benefit,however, does not rise to the level of commercial benefitsufficient to support a claim for misappropriation.” 31
  • 32. Life Stories -- Matthews v. Wozencraft Former undercover narcotics officersued author and publisher of the book“Rush” and producer of the movie forfictionalized account of his life “The term „likeness‟ does notinclude general incidents from aperson‟s life, especially whenfictionalized.” Claim probably also would havefailed because of exception forbiographies or on First Amendment orTexas constitutional grounds 32
  • 33. Life Stories -- Whitehurst v. Showtime Networks Plaintiff owning portion of James Byrd, Jr.‟s publicity rights sued for use of Byrd‟s name and actor‟s photo to promote sales of DVD. Use of Byrd‟s name and actor‟s image protected by first amendment 33
  • 34. Art Good,Advertising Bad 34
  • 35. Henley v. Dillard’s Dept. Stores (N.D. Tex. 1999) “This is Don.” “This is Don‟s henley.” “Because the use of the expression „Don‟s henley‟ is so clearly recognizable as a likeness of Plaintiff, the Court finds that no reasonable juror could conclude that the phrase „Don‟s henley‟ does not clearly identify the Plaintiff, Don Henley.” 35
  • 36. Elvis Presley Enterprises v. Caprese(S.D. Tex. 1996) Use of “Velvet Elvis” as bar name was not right ofpublicity violation but rather “represents an art formreflective of an era that Elvis helped to shape.”(Appeals court found that bar name was a trademarklaw violation)Use of photos of Elvis in advertisements was amisappropriationReferences to Graceland and “Elvis Has Left theBuilding” were misappropriations because of theirunmistakable association with ElvisThe phrase “King of Dive Bars” and the inclusion ofpeanut butter and banana sandwiches on the bar‟smenu could not support a right of publicity claim. “Totrigger infringement the plaintiff must be clearlyidentifiable from use of the item or phrase inquestion.” 36
  • 37. O’Grady v. Twentieth Century Fox (E.D. Tex. 2003) Discovery showed Scott O‟Grady documentary in conjunction with promotions for “Behind Enemy Lines” linking the two.  “In the New Twentieth Century Fox Feature Film, Behind Enemy Lines, like Scott O‟Grady, Owen Wilson‟s character, naval aviator Chris Burnett, runs into some challenges once his plane is shot down.” Question for jury whether O‟Grady‟s name and likeness had been used for value associated with them Fact that O‟Grady‟s story had once been “newsworthy” was not enough to entitle Discovery to summary judgment on O‟Grady‟s claim. 37
  • 38. Plaintiff Need Not Be Widely Famous 38
  • 39. Moore v. Big Picture Co. (5th Cir. 1987) Big Picture used name of Moore, who worked forrival media company, as part of pitch for its audio-visual services to Kelly Air Force BaseCourt rejected Big Picture‟s argument that Moorehad not shown that his name had been used for itsvalueIt was to Big Picture‟s “advantage to have a well-known, highly qualified person listed on theproposed staffing chart.” 39
  • 40. Topheavy Studios v. Doe(Austin Ct. App. 2005) Underage plaintiff paid $20 in “prizemoney” for exposing breasts foranswering questions incorrectly duringtrivia contest at South Padre Island Images appeared in video gameand in promotion for video game“Generally, an appropriationbecomes actionable when the nameor likeness is used „to advertise thedefendant‟s business or product, or forsome similar purpose.‟” 40
  • 41. Topheavy Studios v. Doe(Austin Ct. App. 2005) Underage plaintiff paid $20 in “prizemoney” for exposing breasts foranswering questions incorrectly duringtrivia contest at South Padre Island Images appeared in video gameand in promotion for video game“Generally, an appropriationbecomes actionable when the nameor likeness is used „to advertise thedefendant‟s business or product, or forsome similar purpose.‟” 41
  • 42. You Never Know Where Your InternetPhotos Might End Up Photo from Flickr used in Australian cell phone ad urging consumers to “Dump Your Pen Friend” Girl in photo could not sue Australian company in Texas The photo of Alison Chang from Justin Ho-Wee Wongs Flickr photo-sharing web page. Photo by Justin Ho-Wee Wong. 42
  • 43. Copyright vs. Right of Publicity•The Nightcaps alleged that ZZTop‟s “Thunderbird” copied theNightcaps “Wine, Wine, Wine”•Misappropriation claimpreempted by Copyright law•For instance, the Nightcaps didnot allege that ZZ Top used theirname or likenesses to promoteZZ Top‟s song.
  • 44. Sovereign ImmunityChavez v. Arte PublicoUniversity of Houston entitled tosovereign immunityJiminez v. ConleyMagazineSan Antonio entitled to sovereignimmunity.
  • 45. Other Issues to Consider Copyright  “I found it on the internet” and “I changed it” are not defenses Trademark  Has the individual registered their name or identity as a trademark? Defamation  Public figures vs. Private individuals Intentional Infliction of Emotional Distress 45
  • 46. Likely “Safe” UsesTexas Property Code, Chapter 26 PERMITTED USES. (a) A person may use a deceased individuals name, voice, signature, photograph, or likeness in: (1) a play, book, film, radio program, or television program; (2) a magazine or newspaper article; (3) material that is primarily of political or newsworthy value; (4) single and original works of fine art; (5) an advertisement or commercial announcement concerning a use under this subsection. 46
  • 47. Keith Jaasma Patterson & Sheridan, LLP3040 Post Oak Blvd., Suite 1500 Houston, TX 77056-6582; (713) 576-5062kjaasma@pattersonsheridan.com www.jaasma.com 47