Re: Rights in real characters

On 8/5/97, Mark Lemley <mlemley[_at_]mail.law.utexas.edu> wrote:
>
> 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?

I first admit that I am writing from recollection rather than from any recent research. Within the general rubric of the right of privacy, many states recognize to varying degrees 4 separate but conceptually related torts: (1) intrusion into seclusion (or solitude); (2) unjustified disclosure of embarrassing private facts; (3) publicly disclosing information that places a person in a false light (first cousin of defamation but statements/disclosures do not have to be defamatory); and (4) the right of publicity. I know that nos. (1), (2), and (3) theoretically can apply to political or other very public figures although their status as such generally will make their case more difficult to establish. Although the law pertaining to (4) certainly may vary among states, does it not apply only when the plaintiff's name, likeness, voice, or other aspect of his or her identity has commercial value to the plaintiff himself (a value which is appropriated for commercial gain by the defendant)?

In the case of a president or other current political figure, these aspects of their identity/persona are not currently of commercial value to them, although it is possible that such value may accrue after they leave office (depending on whether they develop a commercially valuable persona later). Thus, someone like me would seemingly not enjoy the right of publicity (or appropriation of one's commercially valuable identity) because the various aspects of my identity or persona have no commercial value whatever. On the other hand, as a private figure I could successfully assert a violation of (1), (2), or (3) in many circumstances in which a public figure could not. So, it may work out that a type of conduct by a potential defendant would violate (1), (2), or (3), but not (4) if I am the plaintiff, but violate (4) but not (1), (2), or (3) if someone like an entertainer or actor is the plaintiff. Unless the relevant state's law is different than most states, it seems that the president, Al, Newt, et al. would not be able to assert (4) and would find it significantly more difficult than most others to successfully assert (1), (2), or (3). The price of being a public official? Am I wrong?

John Allison

John R. Allison
Graduate School of Business
University of Texas at Austin
512-471-9435
<allisonj[_at_]mail.utexas.edu> Received on Thu Aug 07 1997 - 03:32:43 GMT