On Fri, 8 Aug 97, Jayne Sebby <jsebby[_at_]unlinfo.unl.edu> wrote:
>
> I not sure I see the difference between a coffee mug and a
> commercial film. Especially since the "Contact" producers have
> allowed the President's segment to be used in advertising/promotional
> clips. It may be less likely that a person chooses a film based on
> a specific image but the effect is still the same.
A coffee mug with a picture of Clinton would probably only sell because of the picture of Clinton. A film with a short bit with Clinton will be viewed for many reasons, one of which may be to see that clip of Clinton, or not. A movie is a creative piece. And although some might argue that a mug has some creativity, short of it being a piece of art, most would agree that a movie has significantly more complexity and creativity than a coffee mug. Therefore, a movie requires more protection as to its expression than a mug, even when the movie shows Clinton's mug. :)
"It is at once apparent, when we deal with the content of a book or motion picture, that we deal with no ordinary subject of commerce.... [T]heir importance 'as an organ of public opinion is not lessened by the fact that they are designed to entertain as well as to inform;' ... [books and motion pictures] are a constitutionally protected form of expression notwithstanding that 'their production, distribution and exhibition is a large-scale business conducted for private profit.'"
Girl Scouts v. Bantam Doubleday, 808 F. Supp. 1112, 1120 (S.D.N.Y. 1992).
"In contrast, the facts underlying Lugosi v. Universal Pictures, supra, are substantially different than those in the present case. Lugosi involved the use of Bela Lugosi's likeness in connection with the sale of such commercial products "as plastic toy pencil sharpeners, soap products, target games, candy dispensers and beverage stirring rods." [citation] These objects, unlike motion pictures, are not vehicles through which ideas and opinions are regularly disseminated. [citation] This case involves the use of a celebrity's identity in a constitutionally protected medium of expression, a work of fiction on film."
Gugliemi v. Spelling-Goldberg Productions, 25 Cal. 3d 860, 874 (1979)(footnote omitted).
As to the promotional clip, it is indeed advertising, but here is what Gugliemi had to say:
"It would be illogical to allow respondents to exhibit the film but effectively preclude any advance discussion or promotion of their lawful enterprise. Since the use of Valentino's name and likeness in the film was not an actionable infringement of Valentino's right of publicity, the use of his identity in advertisements for the film is similarly not actionable."
Gugliemi, 25 Cal. 3d at 873.
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