Re: Rights in real characters

Responding to comments I made in our ongoing thread about "Contact" and the President's rights of publicity, Jayne Sebby <jsebby[_at_]unlinfo.unl.edu> wrote:
>
> Bob Cumbow <cumbr[_at_]perkinscoie.com> writes:
> >
> > . . . . 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.
>
> I thought that newspapers were covered under the news analysis/commentary
> exceptions to the Copyright Act.

The discussion is about rights of publicity, not copyright. Moreover, the "exceptions" to the Copyright Act (I assume you mean the Fair Use provisions) are broad enough to include "comment and criticism" in the context of a film as well as a news medium.

> > 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;
>
> 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.

I don't think the effect is at all the same. The use of the President's image in "Contact" may (as I have said before) violate other principles, and give rise to other causes of action, but it does not, to my mind, constitute a "commercial exploitation" of the President's image in the way that using his image in an advertisement or on a coffee mug would. I grant, however, that reusing the clip in a commercial trailer for the film might create a RoP action.

Bob Cumbow
<cumbr[_at_]perkinscoie.com> Received on Sat Aug 09 1997 - 23:04:37 GMT