Re: Rights in real characters

Sheldon W. Halpern <shalpern[_at_]pop.service.ohio-state.edu> wrote:
>
> There seems to be a serious misconception here of the right of publicity.
> The use of the image in this fictional movie is clearly :"commercial" and
> the fact that the footage was that of a public speech does not mitigate
> that kind of use or otherwise provide a defense. The use was clearly also
> not parodic. In short, there would seem to be an unexcused violation of the
> right of publicity. Nevertheless, as has been pointed out, as a practical
> matter, presidents do not sue for this kind of thing and it is unlikely
> that this president would sue at all.

The way right of publicity is applied and interpreted varies from state to state. Some do not recognize it at all, some have decisional law, and some have statutes. In general, however, right of publicity is regarded as a strictly commercial right, namely, the right to exploit one's own persona for commercial purposes. The fact that "Contact" is a commercial movie, and you have to buy a ticket to see it, does not make the use of the President's image therein a "commercial" use, violating the right of publicity. If it did, then every newspaper that printed the President's photo would be violating the same right, unless they decided to give their papers away for free. In most of the right of publicity jurisprudence I am familiar with, the right is limited to "commercial" uses, which are defined specifically as advertising or merchandising. In other words, you can't put the president's face in an ad or on a t-shirt or coffee mug without violating the right of publicity; but you most definitely CAN use his image in a publication or a film. Doing so may give rise to OTHER causes of action (see Mark Lemley's thread on this), but it does NOT violate the right of publicity as I understand it.

Bob Cumbow
<cumbr[_at_]perkinscoie.com> Received on Wed Aug 06 1997 - 21:40:32 GMT