We've been talking a lot about the rise of "publicity rights," a new form of law often lumped into the "intellectual property" grouping. There are all sorts of problems with the concept of publicity rights and a bunch of them are highlighted in this new lawsuit, pointed out to us by Eric Goldman. A class action lawsuit has been filed against Facebook based on the bizarre claim that Facebook's Friend Finder feature violates users' publicity rights. The lawsuit complains:
To promote the use of its Friend Finder service, Facebook has and continues to post the names and likenesses of a user's friends on that user's Facebook.com page, using words to the effect that the user's friends "found friends using Friend finder," suggesting that the user also "Give it a try!" The friends whose names and likeness are used to promote Friend Finder have not actually consented to use their names and likenesses to endorse Facebook's Friend Finder service, nor does Facebook disclose to such users that Facebook intended to use their name and likeness to promote the Friend Finder service to others.
Think about that for a second. This is, of course, the inevitable logical conclusion of ridiculous publicity rights claims. You would not be able to show (accurately) anyone who used a service without first getting their permission for it. That seems pretty ridiculous. I doubt this lawsuit will get anywhere, but if it actually does gain some traction, perhaps people will finally start to realize what a slippery slope publicity rights create.
It's not as if this in practice causes any harm to Apple or Steve Jobs or confusion about their brand. It doesn't put Steve or Apple in any bad light -- in fact, it's a good likeness. And it sold quickly, so there is demand for it.
Steve and Apple are not desperate for any extra publicity, or any extra income. But instead of shutting them down -- what if they struck a deal to pay a royalty on each one, and to sell them in Apple stores -- and then Apple donate its income from this to charity.
But that would go beyond the standard mentality of "protect, protect, protect."
We've been talking a lot about publicity rights cases lately, and how this new form of "intellectual property" (based on various state laws) is already being widely abused in ways that appear to violate First Amendment rights. It looks like we may finally be getting some lawsuits to test the legality of such publicity rights claims. There's been an ongoing case filed against EA over whether or not it could use images of college football players without their consent. Many seem to think this case will bring the issue up to the level of Supreme Court review, and they're jumping in with amicus briefs. This is one time when I'm going to side with the likes of the MPAA and Viacom -- both of whom argued that EA is right and that the First Amendment should prevail over these rights. Of course, it's amusing that they seem to take a totally different stance when it comes to other forms of intellectual property. But those organizations aren't known for their logical consistency...
Apparently, the campaign of BJ Lawson, who just lost in his bid to take a Congressional seat away from Rep. David Price in North Carolina, claimed that actor Morgan Freeman did the voiceover on their recent campaign ad:
The campaign claimed that the ad was "resonating" with voters. However, after the press started asking about the ad, Lawson's campaign announced that Freeman had recorded the voiceover for the ad (at less than his usual rates, implying his further support of Lawson's campaign), Freeman denounced the campaign as lying, saying that he did not record the commercial, does not support the candidate and that "no one who represents me ever has ever authorized the use of my name, voice or any other likeness in support of Mr. Lawson or his candidacy."
Following that, the Lawson campaign pulled down its press release announcing that Freeman had done the ad, and replaced it with an announcement claiming they were scammed by a contractor named MEI Political, and going so far as to actually post the contract and emails that had gone back and forth over this (which show a fee of $4,500, which you have to assume is way below Freeman's going rate):
If you look at the emails the campaign had initially suggested a play on the "Priceless" Mastercard commercials, and the guy from MEI warns them that Mastercard has been known to sue over such copying, so at least that time MEI knew to warn about potential intellectual property issues.
The guy from MEI Political, Ben Mathis, has responded with a press release and by releasing other emails himself, claiming that all along he was clear that it was Morgan Freeman's "voice double" and stating that the campaign could not claim Morgan Freeman made the ad:
Reading through all of this, it does sound like there was some pretty serious miscommunications going on. From what's been presented by both sides, it looks like MEI told the Lawson campaign that it had some actual celebrities and some voice doubles, making it clear in the initial email that with the doubles, you couldn't name the celebrities (even though many people would "recognize" the voice). However, it was in a later email that MEI appears to have lumped all of the available "voices" together in one list, and the Lawson campaign either did not remember the difference or chose to ignore it. However, it sure does look like the contract the two parties signed flat-out names Morgan Freeman, and not his double, which could put MEI in hot water. MEI also claims that it made clear, via a phone conversation, not to use Freeman's name, and the Lawson campaign did so anyway. Also, amusingly, he asks them to keep his name out of it, which the campaign clearly did not do.
Of course, it will be interesting to see if any lawsuits actually come out of this, and who, exactly, sues whom? Freeman, conceivably, could have a publicity rights claim against the campaign and against MEI. The campaign could have a suit against MEI as well if it can make the argument that the contract indicates it would actually be Freeman, not his voice double. And, you could even see how MEI might have a case against the campaign, after the campaign claimed it was "tricked" by "a political mercenary." Of course, with the election over, and Lawson losing, they all might just let it slide... Either way, while some might claim this is a perfect example of where publicity rights make sense, it seems like good old traditional fraud statutes and contract law could handle any necessary legal lifting here instead.
Erik sent over the the news that Dutch model Lara Stone has apparently won damages against French Playboy for publishing what were referred to as "unauthorized" photos of her in their June issue. Tragically, much of the reporting on this doesn't explain what kind of photos we're talking about (from the description, it almost sounded like photos taken while she was unaware). However, in the interest of understanding the legal implications only (of course), I (ahem) found the photos in question (oh so very NSFW). The photos all appear to be professional studio shots, most likely from a single photoshoot. Stone claims that her main complaint was just that "no woman wants photos of them to be published in Playboy without permission." However, I'm wondering how French Playboy got the photos in the first place, and if it wouldn't have a claim against the photographer, if he had claimed the rights to the photos (and produced a signed model release form). Obviously, the photos themselves were initially taken with permission, since it's clearly a professional photoshoot. So, where in the process did the photos become "unauthorized"?
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.
Copycense points to the news of how the executor of Joe DiMaggio's estate is threatening to sue Yale University Press for using a photo of DiMaggio with Marilyn Monroe, with whom he was famously (if briefly) married, in a book about DiMaggio's relationship with Monroe. Morris Engelberg, who has been an aggressive protector of DiMaggio's image since his death is claiming this is not allowed:
"We will not authorize any photo of Joe DiMaggio and Marilyn Monroe ... to be on the jacket of any book," he responded in a letter dated Sept. 28. "This was a 'no-no' in Mr. DiMaggio's lifetime," the attorney wrote.
"We have respected Mr. DiMaggio's wishes that there be no commercial or other venture depicting" Joe and Marilyn.
The thing is... it's not clear that DiMaggio (and now Engelberg) actually have the right to prevent that. Think about it: if a newspaper simply was reporting on DiMaggio and Monroe, and snapped a photo of the two, that's perfectly legal. So why wouldn't the same be true for a book. While this is only at the "threat" stage, so it's not clear what laws Engelberg would actually rely on, you'd have to imagine it would be yet another attempt at using a publicity rights claim. As we've been discussing lately, publicity rights have suddenly become quite popular, and the law around it is really troubling in how it prohibits all sorts of speech. Right now, of course, publicity rights law is very much in flux, and dependent on various state laws and ever changing caselaw. My guess is that Engelberg might be more bark than bite, because losing a lawsuit like that could have some pretty serious consequences.
While it might not be entirely relevant, this threat reminds me of the story we had a couple years ago about an attempt by Marilyn Monroe's estate to use a publicity rights claim. Apparently, her estate had convinced California tax authorities that Monroe was a New York resident, to avoid paying taxes on the estate in California. The problem? New York's publicity rights laws only applied to living people, not dead. California has posthumous publicity rights. So, when the estate tried to claim California publicity rights, it was rejected, because of the whole "NY resident" thing. The ruling there basically said Monroe no longer had publicity rights. So that doesn't bode well for Engelberg's threats... though I'm guessing that DiMaggio probably qualified as a California resident (despite playing for the Yankees, he was famous as a San Francisco native), so perhaps that's what he's banking on.
Ben alerts us to the news that astronaut Bruce McCandless is suing the musician Dido for her album cover on her 2008 album, "Safe Trip Home," which uses a NASA photo of McCandless in space:
Now, it's notable that McCandless is not claiming copyright over the image -- which is good, because he almost certainly doesn't own the copyright. Either the photographer who shot the image does or (more likely) the photo is owned by NASA which should make it public domain (though, potentially not). It appears that instead, McCandless is claiming a violation of his publicity rights, which we've noted has become all too popular a legal strategy these days. It's quickly getting up there in popularity as a "new form" of intellectual property -- and one that is perhaps even more questionable than patents and copyrights.
If this really is a publicity rights claim (and, if anyone has the actual filing, I'd love to see it, and post it here see update below), it's difficult to see how much of a claim he has. It's not as if he's identifiable in the image, or that anyone will see it and think: "Hey, I'll buy this album because I know astronaut Bruce McCandless endorsed it." That's ridiculous. Most people will have no idea who the astronaut is, nor will they even care. This seems like yet another blatant money grab, made possible due to the ever increasing (and dangerous) belief that we own "rights" to imaginary concepts.
Update: Thanks to all of you for sending me the filing. It's posted below, and it's pretty much what you'd expect. Standard publicity rights claim:
During the Presidential campaign in 2008, we noted that CBS had sent a takedown notice for a John McCain ad that included a snippet of the CBS Evening News with Katie Couric. We noted that this seemed silly and a pretty clear case of fair use. While not much more ever happened in that case, in a similar situation, we now have Fox News and one of its hosts, Chris Wallace, suing Missouri Senate candidate Robin Carnahan, claiming copyright violations, invasion of privacy and misappropriation of likeness -- saying that the ad implies that Wallace endorses Carnahan. Fox has also sent takedown letters to YouTube for hosting the video, though others appear to have it (for the time being).
The ad itself is pretty straightforward. It's a clip of Chris Wallace asking a question to Carnahan's opponent in the race, Roy Blunt from a few years ago. It's basically Wallace saying the following:
"You just said a moment ago that you have to show that you're the party of reform but some question whether you are the man to do that. In 2002, you tried to insert language into the Homeland Security Act to help Phillip Morris tobacco [company] while you were dating that company's lobbyist. And your campaign committee's paid $485,000 to a firm linked to lobbyist Jack Abramoff. Are you the one to clean up the house?"
And then some tag line against Blunt. It never shows Blunt's response. It's difficult to see how anything about this lawsuit makes sense. First of all, the copyright claim is pretty weak. While most of the commercial is the clip, it seems like it's quite likely this would still qualify for fair use. The idea that this implies Wallace endorsed Carnahan is a huge stretch. Nothing in the ad suggests he did at all. It's a factual representation of what was said. Fox's claim that this creates financial harm doesn't make much sense. Even if (again, a huge stretch) people believe that Wallace was endorsing Carnahan, that's got nothing to do with the financial loss from the clip itself. Case law is pretty clear that the financial loss needed in a fair use analysis involves the financial loss over what the clip itself could be licensed for -- not any ancillary "costs." And, in the very same complaint, Fox makes it clear that it wouldn't license this clip even if the campaign had asked. Thus it seems to admit that the "financial loss" is nothing.
But, really, the bigger issue, is that in suing and sending takedowns over this video, all Fox has done is draw significantly more attention to the story itself and the negative impression of Blunt. If I had to guess, I'd say that Carnahan has never been so happy to be sued. It's tons of free advertising on an attack ad on her opponent.
And, of course, if the video is found to be fair use -- as I would bet it would be -- we'll have yet another example of how the DMCA's takedown process is a clear violation of free speech. Even if the video is eventually allowed back online due to a counter-notice, copyright law was being used to silence political speech in the middle of a campaign.
Ah, the fun never stops with the still ambiguous world of publicity rights, a relatively recent, but growing field of "intellectual property" that has all sorts of problems. THREsq points us to a legal analysis of whether or not California Governor Arnold Schwarzenegger would have a publicity rights claim over the character "Thor," found in Starcraft II. It's hard to argue that the character isn't based on Ahhh-nold, as it has his accent and repeats (sometimes paraphrased) famous Arnold lines from various movies:
In some ways, this is not all that different than the recent complaint from Michael Jackson's estate over the "zombie" Michael Jackson found in the game Plants vs. Zombies. Of course, to make this even more interesting, Schwarzenegger is still leading the legal fight against violent video games in California, so it seems even more amusing that his "voice" appears in a new video game.
That said, there's no indication that Schwarzenegger is actually upset by this -- and he apparently has not complained about other attempts to mimic his voice, such as with the Simpson's character McBane. So, at this point, the post above appears to be idle speculation on how a publicity rights claim might play out. However, it seems like a sad commentary on the state of publicity rights law that it's even worth considering whether such a creative choice by the gamemakers might break the law.
