Re: USA Copyright Act

On 98-07-28, Prof. Jay Dougherty <fjdoughe[_at_]lmulaw.lmu.edu> wrote:
>
> The UK doesn't recognize a right of publicity, or commercial
> appropriation of likeness tort. Moreover, the UK unfair competition
> law is quite a bit more restrictive than that recognized in some other
> countries (although some relatively recent cases have started to broaden
> it slightly in the character merchandising arena). In fact, if the few
> US cases that have dealt with conflict of law in the right of publicity
> are correct that the applicable law in determining whether the right
> of publicity survives death is that of the jurisdiction in which the
> celebrity was domiciled at time of death (see, e.g., the Day in
> Hollywood/Night in Ukraine case), then Lady Di's likeness could be used
> in the US now without violating her right of publicity (I'm assuming she
> was domiciled in the UK). (Of course, don't consider this legal
> advice!)

Thanks for the info re the UK.

> 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.

I agree. The First Amendment fortunately limits the scope of the right of publicity monopoly in some instances (parody, commentary, newsworthy uses, incidental uses,etc.).

> 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.

Yes, the relationship is not the very same but might help understand why copyright has to respect other competing content-related interests, like the right of publicity or defamation law.

Hasn't the First Amendment placed some limits also to the *common law* defamation tort? For example, the 'actual malice' requirement (Times v Sullivan) that must be proved by plaintiffs in cases brought by public figure/officials. This requirement saves some false, 'would be' defamatory statements (negligent ones), from liability in the interests of news dissemination and public discourse.

> The 96 Performers Treaty was for audio performers. I believe work is
> still ongoing on a treaty dealing with audio-visual performers.
> Implementation of such a treaty will presumably be quite controversial
> (more controversial than the audio performers). Finally, not all civil
> code countries recognize a "portrait right" (the right of the subject
> to prohibit the use of the copyright).

I had in mind EU civil law countries (France, Italy, Spain, Germany, Belgium,..) that do recognize such a right. But I am not that sure about the American continent (Argentina, Brasil, Mexico, etc.). So, who does not?

> Incidentally, the Loyola Entertainment Law Journal has a forthcoming
> issue with articles on the right of publicity in several other countries,
> including the UK.

Thanks for pointing it out. Very appealing, particularly, the comparative approach.   

CF Ludena
<Ludena[_at_]aol.com> Received on Wed Jul 29 1998 - 09:09:07 GMT