Re: O.J. SIMPSON'S INTELLECTUAL PROPERTY

On Wed, 4 Oct 1995, Howard Knopf wrote:
[about IP issues in OJ]
>
> 1. What is the measure of possible damages for the victims'
> families/estates?

[I'm writing this at home, so I don't have the cites handy. If you want them, e-mail me directly, and I'll be glad to send them on...]

Within the IP context, states vary as to whether or not Publicity Interests are descendable. I seem to remember that California is one of the few states, like Tennessee and Texas that *do* allow the publicity interest of a public figure to be passed on. But this is kind of putting the cart before the horse--it's not clear from the question that the publicity interests of the decedents are being infringed.

Most US courts grant a wide swath of "newsworthiness" privilege to issues of public concern. A good early case is Illinois' Leopold v. Levin, where the author of "Compulsion" was sued by the subject of the book, who had kidnapped and murdered a young boy. The plaintiff brought the case not in libel, for the facts stated were true, but instead sought unsuccessfully to assert his privacy interests because his name and likeness were used in a book without his permission. See also, Time v. Hill (SC) (narrowing the total cloak of privacy from unwitting victims of crime who are drawn into the vortex of a public controversy).

> 2. Are there any state statutes and is there relevant case law dealing
> with the exploitation of intellectual property by the alleged perpetrator
> of a crime? Does this apply where there has been an acquittal in the
> criminal system?

New York had a famous statute, called the "Son of Sam" law, which diverted profit from book sales of a famous serial killer to the victim's family. The law was found unconstitutional a short time later, although I believe it has been redrafted...

> 3. Does the situation depend on whether the exploitation is directly
> in connection with the crime, or otherwise? What if the perpetrator had
> celebrity status in any event?

Usually, in cases where the newsworthiness defense is asserted against a celebrity, the best argument plaintiff can make is that the gist of the use of the likeness is a false endorsement, but this argument requires a court to actually look at the content and context of the use, not the use itself. In other words, almost any plausible connection between the event and the use will satisfy most courts. See Namath v. Sports Illustrated (NY), Montana v. San Francisco Chronicle (CA), New Kids On The Block v. News America (Mass).

> 5. Is it possible in theory that injunctions or temporary restraining
> orders could be obtained in this type of situation?

Happens all the time, especially where a copyright or trademark is being used. Less so with right of publicity. The TRO isn't hard to get, provided that some measure of irreparable harm and likelyhood of success on the merits is shown, but they are usually short-lived and followed by an extensive preliminary hearing.

> 6. Any suggestions for further reading?

A few excellent treatises on Privacy and Right of Publicity are:

Libel, Slander and Related Problems, by Robert Sack and Sandy Baron Media and Privacy by Rodney Smolla
50-State Survey of Privacy Law by the Libel Defense Resource Center McCarthy on Privacy

Charles Glasser
3L @ NYU Law
<cjg6159[_at_]is.nyu.edu> Received on Thu Oct 05 1995 - 23:47:40 GMT