On 7/27/98, Jay Dougherty <fjdoughe[_at_]lmulaw.lmu.edu> wrote:
>
> Incidentally, with all due respect, I believe your comment as to
> the application of right of publicity to copyrighted works in the
> US is an oversimplification. There are things that one could do
> with a copyrighted work embodying a person's likeness that would not
> violate their right of publicity. For example, I think that a US
> court would reach a different result than the Quebec court did in
> the case last spring of a photograph of a young woman taken in a
> public place and published in an "art" magazine. The Quebec court
> found that to be a violation of the subject's privacy rights. I
> doubt that such a use would infringe rights of publicity in the US.
But don't we have a line of U.S. privacy cases dealing with commercial appropriaton of likeness, reaching the same result on similar facts? See the 1997 article "Stolen Photographs" by Jeffrey Malkan, in the Texas L. Rev., collecting such cases.
> The relationship between right of publicity and copyright is not
> the same as the relation between the law of defamation and the
> right of publicity. Defamatory statements (and portrayals) are not
> protected by the First Amendment, whereas some "truthful" uses of
> a person's name and likeness are.
I have some question about this as well, as the standard for defamation I believe you are referencing is that for public figures -- wouldn't the 1st Amendment interest in your Quebec example be substantially less than that for a public figure? Or are you now talking about pure "right of publicity" and not the commercial appropriation privacy tort?
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