Re: Rights in real characters

Robert Cumbow <cumbr[_at_]perkinscoie.com> wrote:
>
> Meir Kogman <kogman[_at_]netvision.net.il> wrote:
> >
> > I am puzzled by the vast protection on the use of pictures and other
> > forms of real characters like James Dean and Marilyn Monroe in the US.
> > In Israel it seems that the only way to prohibit such use is by
> > describing it as infringement of the right to privacy (and perhaps as
> > unfair enrichment).
> >
> > How exactly, is the use of one's look, characters and picture protected
> > in the US?
>
> The right of publicity is the right of any person (not just a celebrity)
> to control the commercial exploitation of that person's name, likeness,
> and personal attributes. It does not apply to non-commercial uses, such
> as news reporting, scholarship, research, and commentary. It does apply
> to advertising, and to any context in which a person's name, image,
> likeness, or personal attribute (such as voice, customary clothing or
> hair style, or an identifiable attribute such as a vehicle recognizable
> as uniquely associated with a particular person) is used in a way that
> might give rise to an assumption that the person sponsors or endorses
> the products or services being advertised. The Right of Publicity
> varies from state to state (some states don't recognize it at all,
> others recognize it only as the right of a living person, still others
> regard it as property that may be passed to one's heirs); however, a
> federal Right of Publicity statute is in the works, and could be a
> reality soon.
>
> As a general rule, it is safest to assume that all people--and especially
> those with the most commercially valuable identities, such as athletes,
> musicians, and actors--are entitled to a right of publicity, and that their
> names and likenesses should not be used or evoked for commercial purposes
> without their permission. This is particularly critical on the Internet,
> where it is a common practice to use, and modify, graphic images of other
> people, both famous and unknown.
>
> The right of publicity protects only against commercial uses, however;
> and it may not be honored where there is a valid free-speech issue such
> as parody or political comment. As long as the name, image, or attribute
> of an individual is used for information or comment purposes rather than
> for commercial purposes, such as might imply affiliation or endorsement,
> a right of publicity action should not lie.

Although this is not fully settled, and, since these actions are currently only under state law, the holdings will differ from state to state. In Ali v. Playgirl, Inc., 447 F.Supp 723, the court held that a picture purporting to represent a naked black man in a boxing ring, with the recognizable facial features of former worlds heavyweight champion Ali, with the picture representing something short of actuality, somewhere between representational art and a cartoon, was a recognizable representation that constituted an appropriation of Alis likeness, and Playgirl lost. One can't assume that parody will always be a sufficient defense to a right of publicity action, particularly if the parodist profits to any extent by his or her parody.

Anthony Claiborne
<abc[_at_]ares.csd.net> Received on Tue Jul 29 1997 - 15:03:59 GMT