Re: Rights in real characters

From: Neil Netanel <nnetanel[_at_]mail.law.utexas.edu>
Date: Wed, 6 Aug 1997 16:08:56 -0500

On Wed, 30 Jul 1997, Mark Lemley <mlemley[_at_]mail.law.utexas.edu> wrote:
>
> I just saw the movie Contact. It contains approximately 3 minutes
> worth of speeches "by" Bill Clinton, which were actually created by
> the movie producer from existing film clips of Clinton. Clinton
> apparently did not approve this use, and was not paid.
>
> Is there any reason this wouldn't violate the right of publicity
> in California?

In response to a comment, he later continued:
>
> Even if speeches the president makes in the course of his official duties
> are in the public domain for copyright purposes, it still seems troubling
> to allow someone to reconstruct them using the same words in different
> order, and producing something that he did not say.
>
> Several people have suggested that the California right of publicity does
> not apply to commercial uses that are not themselves advertisements for a
> product or service; assuming that is true, is there some other law that
> would apply?

Making someone appear to say something he or she didn't really say in a manner that harms that persons reputation would give rise to a cause of action for defamation. The First Amendment requirement of malice when the defamed person is a public figure generally makes it pretty tough for public figures to prevail, but malice could easily be proven in this case, I think, since the film maker clearly knew that Clinton didn't say what he was portrayed to say. More difficult would be the issue of whether film viewers really believe that Clinton made the statements and whether the portrayal caused any material damage to Clinton's reputation.

Neil Netanel                            Phone:  512-471-2679
Assistant Professor                     Fax:  512-471-6988

University of Texas School of Law
727 East 26th Street
Austin, Texas 78705 Received on Wed Aug 06 1997 - 21:09:01 GMT