Because unless Mr. T uses his image in association with a category (or categories) of wares or services, trademark doesn't apply.
As I said, trademark is around to protect the association of wares or services with their origin. Right of publicity protects against the unauthorized appropriation of a persons identity.
I see how it can be confusing; but they really are different things. Don't defer to my authority on this. Please feel free to read the legal doctrine. I find that it's a pretty interesting topic!
Oh now...I think this is becoming a matter of semantics very quickly...
What is the difference between a legal right and a legal privilege?
Natural law theory aside (because I doubt that's what you meant) they mean exactly the same thing. a right or privilege conferred by law is tantamount to society saying "you may do..."
Is the freedom of speech a right inherent in all humans? I think certain totalitarian governments may disagree with you. Are you right and they wrong? No. It's a matter of which society you live in. If you live in western society, free speech is very important (though still not overriding). If you live elsewhere, other rights or obligations may take precedent.
If you want to say that as an American, freedom of speech trumps property rights you can say that; although I don't even think that is uncontroversial. Many of your countrymen might disagree with you.
SO you're right. Free speech is a right that has certain easily recognizable differences with property rights. But that doesn't make it superior. And if it is, you haven't shown why other than to say that you value it so.
I appreciate your position on this. I just respectfully disagree.
You would be right, except that trademark law does not cover this type of activity. That's precisely why states make laws to govern this, because trademark isn't adequate.
Trademarks associate wares or services with their commercial source. It doesn't protect against the unauthorized use of a persons identity, unless that identity is also a trademark.
So if Mr. T decided to open a company where the company logo is his smiling face with a thumbs up (and the gold chains etc.) and someone sued that image, they would be infringing both Mr. T's right of publicity (under tort) and his trademark (under trademark law).
There are different remedies, legal tests and criteria for each. Again, not all IP is the same.
Free speech is a right. so too is the right of publicity. So is copyright etc.
Most rights are not permanent and even those that are (like freedom of speech) are not absolute. When doctrines of law arise from a body of court decisions (called the jurisprudence) they do so because judges and juries are interpreting these rights and which ones should win out when they enter into conflict with one another. If you tihnk that the freedom of speech should trump the right of publicity in all instances, that's fine. It's an acceptable position and I don't think it's ridiculous.
However, you must realize that the law is based on social and doctrinal propositions. Judges don't just arbitrarily create rules about intellectual property or anything else. If the law says "x", it says so because x is justified by social and doctrinal propositions. Without digressing into a full blown lecture of common law adjudication, that's more or less the point.
So again, your opinion is valid. But it would be fair to say that the law is such because most people don't or didn't share your view on this particular issue.
Personally, I think the freedom of speech must be tempered by all the other rights that rub up against it.
Actually, your ownership of "actual property" does expire naturally, when you die.
It's the intellectual property rights that expire artificially (when the statute says they do). In fact, copyright outlives the author by 70 years in the US and 50 years in most other common law jurisdictions like Canada.
Your ownership of property may also be forcibly removed. For example, if you don't pay your taxes, your property will be seized.
You make a false distinction between intellectual property and real or personal property when you say they aren't the same because one expires and the other doesn't.
There have been many papers written on this and I promise you it isn't as simple as you make it out to be.
I refer you to my answer directly above. You wrote this before I had a chance to reply. Also, I'm well aware of the purpose of copyright law...I would appreciate if you didn't patronize me on a topic on which I actually have considerable knowledge and experience...
- As far as the real vs. legal fiction goes, I think we may be getting a little too metaphysical here. Almost all law, including real property, is a legal fiction at one level or another. There is nothing objectively "ownable" about property (note that by objective I mean true of the object in and of itself). There is nothing about a piece of land that suggests ownership. Proof of this is the way aboriginals view land. They had no concept of property before it was imposed on them. So I think any further discussion on the "existence of IP" is semantical and pointless.
- As far as what's unenforceable and counter to human intuition, many laws are such. I think we should stop using the blanket term IP at this point. Trademark and to a lesser extent patent rights are quite enforceable. Copyright is somewhat special in that the advent of the Internet has drastically changed the way people consume copyrighted content.
I still disagree with you in that I think it could be enforceable if a more suitable (and permissive...but that's just my opinion) copyright regime was installed in the place of the current approach. In both the US and here in Canada, governments have taken a hard line approach to copyright legislation. It doesn't have to be that way. It isn't an all or nothing; by which I mean that it isn't harsh copyright law or no copyright law. There must be a happy medium that both recognizes an authors right in his creation and consumers right as a member of the general public.
Remember, IP laws in general are supposed to benefit society as a whole by balancing the interests of creators and users. If the current incarnations of these laws are failing, that doesn't mean that IP generally and copyright in specific fail as concepts. At the very least it doesn't logically follow.
- Once again, information may be used freely. So can ideas. We're talking about something that is comparatively limited or small- the persona of a person. If a character in a movie by chance happens so have some similar physical traits to Wilt Chamberlain, the latter's right of publicity is not necessarily infringed. There is a legal test (which I won't get into here) that may be argued from both sides.
The law isn't black and white. Even when it is, often a good litigator can plead either side of a legal question. I think many of those participating in this discussion should remember that. Whether or not a person has a cause of action is one question. However, even if they do, they still have to convince a judge (or jury) that they're right and that the other side's argument holds no (or at least less) merit. That's the beauty of the law...to me anyways...
Why yes I have! In fact, intellectual property is a legal fiction. But so are a lot of other things. A legal fiction simply refers to a concept created within the law to deal with a given problem or situation. Copyright is a body of law developed from the "need" for authors to protect ownership in their "intellectual creations". Patent law is much the same except for inventions of utility.
The point is that the fact that IP is a legal fiction doesn't mean that it doesn't exist (as a subject, concept, word, or anything else). It's quite real. It has real world implications and is the subject of a rich an expanding body of case law. So either way, it's just silly to say that IP doesn't exist. You can say it's not tangible (and I would be the first to agree with you), but you can't say it doesn't exist regardless of the meaning you assign to the word "exist".
2) "They do so under guise of protecting reputation and privacy, even though the information could be wholly factual and easily learned from public sources"
The right to privacy protects people's privacy. The right of publicity is what protects a persons right to exploit their image. Again, they are two sides of the same coin (publicity rights or "droit a l'image" in French). I've explained this above, it isn't the information (or data as I called it) that is protected by the right of publicity. In fact, raw data isn't protected by copyright either.
People are conflating way too many concepts here. The FACT (in the literal sense of the word fact) that Wilt Chamberlain had a thin mustache is not protected by either the right of publicity or copyright law. For a more detailed explanation I would recommend any substantial doctrinal writing on copyright law and right of publicity...I gotta get back to work :)
A person can sue for their likeness being used in a parody. The thing is, they're suing in tort, not under the copyright law.
There are two different potential causes of action. The person may:
1) Sue for misappropriation under the right of publicity; or
2) Sue under copyright law.
However, they couldn't sue under copyright law for the use of their image. Copyright law doesn't protect that unless their image was fixed in some copyrightable work. In that case, it's the work being infringed, not the persons right of publicity.
Again, copyright doctrines like fair use only apply to 2). If you made a parody of another film and were sued for copyright infringement, you may make use of the fair use (or fair dealing in Canada and the UK) doctrine to make a fact based defense of your parody.
I wish to point out that someone could make a documentary film about Chamberlain. They can even use film footage and images from his career. They can use excerpts of interviews or any copyright protected material for that matter (providing the rights are cleared).
I just want to make sure that a clear distinction is being drawn between the right of publicity and copyright. They're both forms of intellectual property, but that's where the similarities end...
Parody and satire are categories of fair use. Fair use is a doctrine of copyright law. You cannot use a copyright defense (and a statutory one at that) to a charge of misappropriation of a persons image (an unrelated common law tort). They're two different types of IP.
Now I realize you didn't mean that as a retort. Sorry if the above comes off as a rebuttal. Just layin' out the law!
I'm just explaining the state of the law here. The right of publicity doesn't concern itself with facts or information (let's call it data). It concerns itself with image.
So, your newspaper reporter could write his article without infringing the right of publicity. In fact, perhaps he could even legally use a picture without permission (fair use/fair dealing for the purpose of news reporting or criticism), but I digress.
Making a movie that evokes the person's image, name, voice etc. is a misappropriation. Publishing already public (or even private) data is not.
I refer you to my explanation that the right of publicity's mirror image is the right to privacy. They are two sides of the same coin (appropriation).
The public information is not protected by the right of publicity. The film maker has every right to use Chamberlain's stats. The family doesn't own those...The fact that he was an historical figure is irrelevant. The law doesn't distinguish. The only point where the fame of the person comes into play is when a person makes a claim that their image or persona has been infringed.
The documentary film maker can tell the persons story. They can even dramatize the story. They just can't use anything that is proprietary.
I'm not saying it's a perfect situation. It rarely is when two sets of rights are in direct conflict with one another. We have to balance the public freedom of expression with the private right to privacy.
I'm not saying it's easy. I just think that (as he often is) Mike was a little disingenuous and lacked objectivity:
"We've discussed many times just how frequently publicity rights are being abused to stop basic speech..."
No Mike, that's your assessment in which you import your opinion and mix it (almost seamlessly) with fact. It's a good thing I know a little about right of publicity or I may have been misled into thinking that all (or the majority) of claims in this area are evil jerks trying to deny the public their freedom of expression...
Just once I'd like to read a piece of objective reporting on this site.
Or what if they just don't want his memory "tarnished" by a Hollywood production. I'm not saying the movie would be bad or injurious against Chamberlain; but what if his family just wants peace. What if they don't want attention drawn to their loved one. DO the family's wishes mean nothing?
The right of publicity protects the persona of the person, not only their actual name, image or voice. Appropriation of a likeness may also be actionable if it can be proven that the character is "obviously" likened after the plaintiff.
Right of publicity finds its roots in the tort of appropriation. The tort protects two distinct rights: "The right of publicity" and "the right of privacy" (countervailing rights).
It's wrong to say that misappropriation of identity is generally limited to "cereal box" type cases. You would be right, however, if you said that the right of publicity almost always has to do with economic gain.
The right to privacy, on the other hand, is simply a persons right not to have their image, likeness, voice or persona appropriated by a third party without their permission. It is under this doctrine that the Chamberlain estate makes it's claim.
It's true that tort law is State governed and as a result, different States have different statutes and rules. That said, the principles of the tort of appropriation are well established.
Mike, this has nothing to do with freedom of speech. If someone wanted to make a movie about you, and you weren't OK with it, you would likely oppose the project. The reason why the family doesn't want the movie made is irrelevant. It's a property right! It has it's own modalities; but it's a property right none the less.
I appreciate your vigor. But not everything has to be a First Amendment issue. I've seen articles on tech dirt vigorously defending a persons right to privacy. Why not now?
On the post: Wilt Chamberlain's Family Tries To Block Film About His College Years, Claiming 'Publicity Rights'
Re: Re: Re: Re: Re: I've learned a lot
As I said, trademark is around to protect the association of wares or services with their origin. Right of publicity protects against the unauthorized appropriation of a persons identity.
I see how it can be confusing; but they really are different things. Don't defer to my authority on this. Please feel free to read the legal doctrine. I find that it's a pretty interesting topic!
On the post: Wilt Chamberlain's Family Tries To Block Film About His College Years, Claiming 'Publicity Rights'
Re: Re: Re: Re: Re: I've learned a lot
What is the difference between a legal right and a legal privilege?
Natural law theory aside (because I doubt that's what you meant) they mean exactly the same thing. a right or privilege conferred by law is tantamount to society saying "you may do..."
Is the freedom of speech a right inherent in all humans? I think certain totalitarian governments may disagree with you. Are you right and they wrong? No. It's a matter of which society you live in. If you live in western society, free speech is very important (though still not overriding). If you live elsewhere, other rights or obligations may take precedent.
If you want to say that as an American, freedom of speech trumps property rights you can say that; although I don't even think that is uncontroversial. Many of your countrymen might disagree with you.
SO you're right. Free speech is a right that has certain easily recognizable differences with property rights. But that doesn't make it superior. And if it is, you haven't shown why other than to say that you value it so.
I appreciate your position on this. I just respectfully disagree.
On the post: Wilt Chamberlain's Family Tries To Block Film About His College Years, Claiming 'Publicity Rights'
Re: Re: Re: I've learned a lot
You would be right, except that trademark law does not cover this type of activity. That's precisely why states make laws to govern this, because trademark isn't adequate.
Trademarks associate wares or services with their commercial source. It doesn't protect against the unauthorized use of a persons identity, unless that identity is also a trademark.
So if Mr. T decided to open a company where the company logo is his smiling face with a thumbs up (and the gold chains etc.) and someone sued that image, they would be infringing both Mr. T's right of publicity (under tort) and his trademark (under trademark law).
There are different remedies, legal tests and criteria for each. Again, not all IP is the same.
On the post: Wilt Chamberlain's Family Tries To Block Film About His College Years, Claiming 'Publicity Rights'
Re: Re: Re: I've learned a lot
Free speech is a right. so too is the right of publicity. So is copyright etc.
Most rights are not permanent and even those that are (like freedom of speech) are not absolute. When doctrines of law arise from a body of court decisions (called the jurisprudence) they do so because judges and juries are interpreting these rights and which ones should win out when they enter into conflict with one another. If you tihnk that the freedom of speech should trump the right of publicity in all instances, that's fine. It's an acceptable position and I don't think it's ridiculous.
However, you must realize that the law is based on social and doctrinal propositions. Judges don't just arbitrarily create rules about intellectual property or anything else. If the law says "x", it says so because x is justified by social and doctrinal propositions. Without digressing into a full blown lecture of common law adjudication, that's more or less the point.
So again, your opinion is valid. But it would be fair to say that the law is such because most people don't or didn't share your view on this particular issue.
Personally, I think the freedom of speech must be tempered by all the other rights that rub up against it.
On the post: Wilt Chamberlain's Family Tries To Block Film About His College Years, Claiming 'Publicity Rights'
Re: Re: Re: Re: Re: Documentary
On the post: Wilt Chamberlain's Family Tries To Block Film About His College Years, Claiming 'Publicity Rights'
Re: Re: Re: Re:
It's the intellectual property rights that expire artificially (when the statute says they do). In fact, copyright outlives the author by 70 years in the US and 50 years in most other common law jurisdictions like Canada.
Your ownership of property may also be forcibly removed. For example, if you don't pay your taxes, your property will be seized.
You make a false distinction between intellectual property and real or personal property when you say they aren't the same because one expires and the other doesn't.
There have been many papers written on this and I promise you it isn't as simple as you make it out to be.
On the post: Wilt Chamberlain's Family Tries To Block Film About His College Years, Claiming 'Publicity Rights'
Re: Re: Re: Re:
On the post: Wilt Chamberlain's Family Tries To Block Film About His College Years, Claiming 'Publicity Rights'
Re: Re: Re: Re:
- As far as the real vs. legal fiction goes, I think we may be getting a little too metaphysical here. Almost all law, including real property, is a legal fiction at one level or another. There is nothing objectively "ownable" about property (note that by objective I mean true of the object in and of itself). There is nothing about a piece of land that suggests ownership. Proof of this is the way aboriginals view land. They had no concept of property before it was imposed on them. So I think any further discussion on the "existence of IP" is semantical and pointless.
- As far as what's unenforceable and counter to human intuition, many laws are such. I think we should stop using the blanket term IP at this point. Trademark and to a lesser extent patent rights are quite enforceable. Copyright is somewhat special in that the advent of the Internet has drastically changed the way people consume copyrighted content.
I still disagree with you in that I think it could be enforceable if a more suitable (and permissive...but that's just my opinion) copyright regime was installed in the place of the current approach. In both the US and here in Canada, governments have taken a hard line approach to copyright legislation. It doesn't have to be that way. It isn't an all or nothing; by which I mean that it isn't harsh copyright law or no copyright law. There must be a happy medium that both recognizes an authors right in his creation and consumers right as a member of the general public.
Remember, IP laws in general are supposed to benefit society as a whole by balancing the interests of creators and users. If the current incarnations of these laws are failing, that doesn't mean that IP generally and copyright in specific fail as concepts. At the very least it doesn't logically follow.
- Once again, information may be used freely. So can ideas. We're talking about something that is comparatively limited or small- the persona of a person. If a character in a movie by chance happens so have some similar physical traits to Wilt Chamberlain, the latter's right of publicity is not necessarily infringed. There is a legal test (which I won't get into here) that may be argued from both sides.
The law isn't black and white. Even when it is, often a good litigator can plead either side of a legal question. I think many of those participating in this discussion should remember that. Whether or not a person has a cause of action is one question. However, even if they do, they still have to convince a judge (or jury) that they're right and that the other side's argument holds no (or at least less) merit. That's the beauty of the law...to me anyways...
On the post: Wilt Chamberlain's Family Tries To Block Film About His College Years, Claiming 'Publicity Rights'
Re: I've learned a lot
Why is it that you think these rights are harmful? Not that I agree or disagree, just curious.
On the post: Wilt Chamberlain's Family Tries To Block Film About His College Years, Claiming 'Publicity Rights'
Re: Re:
Why yes I have! In fact, intellectual property is a legal fiction. But so are a lot of other things. A legal fiction simply refers to a concept created within the law to deal with a given problem or situation. Copyright is a body of law developed from the "need" for authors to protect ownership in their "intellectual creations". Patent law is much the same except for inventions of utility.
The point is that the fact that IP is a legal fiction doesn't mean that it doesn't exist (as a subject, concept, word, or anything else). It's quite real. It has real world implications and is the subject of a rich an expanding body of case law. So either way, it's just silly to say that IP doesn't exist. You can say it's not tangible (and I would be the first to agree with you), but you can't say it doesn't exist regardless of the meaning you assign to the word "exist".
2) "They do so under guise of protecting reputation and privacy, even though the information could be wholly factual and easily learned from public sources"
The right to privacy protects people's privacy. The right of publicity is what protects a persons right to exploit their image. Again, they are two sides of the same coin (publicity rights or "droit a l'image" in French). I've explained this above, it isn't the information (or data as I called it) that is protected by the right of publicity. In fact, raw data isn't protected by copyright either.
People are conflating way too many concepts here. The FACT (in the literal sense of the word fact) that Wilt Chamberlain had a thin mustache is not protected by either the right of publicity or copyright law. For a more detailed explanation I would recommend any substantial doctrinal writing on copyright law and right of publicity...I gotta get back to work :)
On the post: Wilt Chamberlain's Family Tries To Block Film About His College Years, Claiming 'Publicity Rights'
Re: Re: Re: Re: Re:
There are two different potential causes of action. The person may:
1) Sue for misappropriation under the right of publicity; or
2) Sue under copyright law.
However, they couldn't sue under copyright law for the use of their image. Copyright law doesn't protect that unless their image was fixed in some copyrightable work. In that case, it's the work being infringed, not the persons right of publicity.
Again, copyright doctrines like fair use only apply to 2). If you made a parody of another film and were sued for copyright infringement, you may make use of the fair use (or fair dealing in Canada and the UK) doctrine to make a fact based defense of your parody.
On the post: Wilt Chamberlain's Family Tries To Block Film About His College Years, Claiming 'Publicity Rights'
Re: Sickening
On the post: Wilt Chamberlain's Family Tries To Block Film About His College Years, Claiming 'Publicity Rights'
Documentary
I just want to make sure that a clear distinction is being drawn between the right of publicity and copyright. They're both forms of intellectual property, but that's where the similarities end...
On the post: Wilt Chamberlain's Family Tries To Block Film About His College Years, Claiming 'Publicity Rights'
Re: Re: Re:
Parody and satire are categories of fair use. Fair use is a doctrine of copyright law. You cannot use a copyright defense (and a statutory one at that) to a charge of misappropriation of a persons image (an unrelated common law tort). They're two different types of IP.
Now I realize you didn't mean that as a retort. Sorry if the above comes off as a rebuttal. Just layin' out the law!
On the post: Wilt Chamberlain's Family Tries To Block Film About His College Years, Claiming 'Publicity Rights'
Re: Re: Re: Re:
I'm just explaining the state of the law here. The right of publicity doesn't concern itself with facts or information (let's call it data). It concerns itself with image.
So, your newspaper reporter could write his article without infringing the right of publicity. In fact, perhaps he could even legally use a picture without permission (fair use/fair dealing for the purpose of news reporting or criticism), but I digress.
Making a movie that evokes the person's image, name, voice etc. is a misappropriation. Publishing already public (or even private) data is not.
On the post: Wilt Chamberlain's Family Tries To Block Film About His College Years, Claiming 'Publicity Rights'
Re: Re: Incorrect
I refer you to my explanation that the right of publicity's mirror image is the right to privacy. They are two sides of the same coin (appropriation).
The public information is not protected by the right of publicity. The film maker has every right to use Chamberlain's stats. The family doesn't own those...The fact that he was an historical figure is irrelevant. The law doesn't distinguish. The only point where the fame of the person comes into play is when a person makes a claim that their image or persona has been infringed.
On the post: Wilt Chamberlain's Family Tries To Block Film About His College Years, Claiming 'Publicity Rights'
Re: Re: Incorrect
I'm not saying it's a perfect situation. It rarely is when two sets of rights are in direct conflict with one another. We have to balance the public freedom of expression with the private right to privacy.
I'm not saying it's easy. I just think that (as he often is) Mike was a little disingenuous and lacked objectivity:
"We've discussed many times just how frequently publicity rights are being abused to stop basic speech..."
No Mike, that's your assessment in which you import your opinion and mix it (almost seamlessly) with fact. It's a good thing I know a little about right of publicity or I may have been misled into thinking that all (or the majority) of claims in this area are evil jerks trying to deny the public their freedom of expression...
Just once I'd like to read a piece of objective reporting on this site.
S'il vous plait Mike! Arręt avec les niaiserie!
On the post: Wilt Chamberlain's Family Tries To Block Film About His College Years, Claiming 'Publicity Rights'
Re:
On the post: Wilt Chamberlain's Family Tries To Block Film About His College Years, Claiming 'Publicity Rights'
Re:
The right of publicity protects the persona of the person, not only their actual name, image or voice. Appropriation of a likeness may also be actionable if it can be proven that the character is "obviously" likened after the plaintiff.
On the post: Wilt Chamberlain's Family Tries To Block Film About His College Years, Claiming 'Publicity Rights'
Incorrect
Right of publicity finds its roots in the tort of appropriation. The tort protects two distinct rights: "The right of publicity" and "the right of privacy" (countervailing rights).
It's wrong to say that misappropriation of identity is generally limited to "cereal box" type cases. You would be right, however, if you said that the right of publicity almost always has to do with economic gain.
The right to privacy, on the other hand, is simply a persons right not to have their image, likeness, voice or persona appropriated by a third party without their permission. It is under this doctrine that the Chamberlain estate makes it's claim.
It's true that tort law is State governed and as a result, different States have different statutes and rules. That said, the principles of the tort of appropriation are well established.
Mike, this has nothing to do with freedom of speech. If someone wanted to make a movie about you, and you weren't OK with it, you would likely oppose the project. The reason why the family doesn't want the movie made is irrelevant. It's a property right! It has it's own modalities; but it's a property right none the less.
I appreciate your vigor. But not everything has to be a First Amendment issue. I've seen articles on tech dirt vigorously defending a persons right to privacy. Why not now?
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