RE: Norm and Cliff

The thing is that what Host is doing (according to Wendt) is not mere reproduction of the image in a non-advertising context, but commercial exploitation of Wendt's image in a promotional context of the kind in which the celebrity himself reserves the right to control the use of his image. I'm not saying I agree Wendt should prevail (I don't); but that's the argument. We're not talking about mere reproduction but about (alleged) violation of the right to control the commercial exploitation of his image.

Robert C. Cumbow
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-----Original Message-----
From: Tyler Ochoa [mailto:tochoa[_at_]LAW.WHITTIER.EDU] Sent: Thursday, October 19, 2000 10:59 AM To: Multiple recipients of list
Subject: Re: Norm and Cliff

>>> "Ikonen, Greg" <GIkonen[_at_]vlg.com> 10/17 9:24 AM >>> The fact that you have the exclusive right under copyright laws to reproduce the photograph in no way immunizes you from an invasion of privacy lawsuit for publication of the photo.

If it were otherwise, you'd expect that imaginative pornographers would successfully defend obscenity charges on the grounds that the copyright laws give them the "exclusive right" to distribute their films. <<<<<

I agree. However, Wendt presents an arguably different situation. In the invasion of privacy and obscenity examples, making the ORIGINAL violates the state law in and of itself. Making additional reproductions simply increases the damages. In Wendt, however, making the original did not violate the right of publicity because it was done with Wendt's consent. It is only the exercise of one of the exclusive rights that violates the state law.

In terms of preemption doctrine, Section 301 requires that a state law have an "extra element" in order to avoid preemption. That certainly exists for either invasion of privacy or obscenity, which protect different interests than the reproduction of a copyrighted work. But, despite the dismissive opinion of the panel in Wendt, it is hard to find any extra element (something going beyond mere reproduction) that would allow the publicity claim to escape preemption under Section 301. Using someone's name or likeness in an advertisement may be an extra element; but using a character from a copyrighted work in a non-advertisting derivative work is not different in scope or nature from a claim based on copyright.

Tyler T. Ochoa
Associate Professor
Whittier Law School

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