Re: Tiger Woods Suit

On 2/26/99, Robert Cumbrow <cumbr[_at_]perkinscoie.com> wrote:
>
> On Thu, Feb 25, 1999, Stanley M. Morris <smmorris[_at_]rmii.com> wrote:
> >
> > On 2/24/99, Tyler Ochoa <tochoa[_at_]law.whittier.edu> wrote:
> > >
> > > I think most courts would be inclined to view the limited edition
> > > work exactly the same as mugs or t-shirts from a right of publicity
> > > point of view. If it were a single original painting in a museum,
> > > they might take the broader point of view that you advocate. I
> > > agree with you that the First Amendment argument SHOULD be taken
> > > more seriously; I am just skeptical that it WILL be.
> >
> > Given the Court's pronouncements in *44 Liquormart* and *Central
> > Hudson* it should be no surprise that the more commercial a work
> > becomes, aside from print media, the more the First Amendment gets
> > short shrift. Based on some reading I did for a presentation several
> > years ago, I discovered that the Court gives great respect to print
> > and other traditional media. As the Court has moved through the
> > years, (not just the present Court) the less a communicative means
> > looks like the Founders' media the more likely they are to regulate
> > and give the First Amendment less import. If my impression is true,
> > any thoughts as to what this means for Web produced works?
>
> I don't think it makes any difference to Web-produced works ... the
> medium ought not to matter.
>
> A Web-produced political commentary is still likely to enjoy high First
> Amendment protection; a Web-produced ad is still going to get low-level
> protection.
>
> There's no reason to think that First Amendment jurisprudence isn't
> going to continue referring to the content rather than the medium in
> deciding what level of protection should be afforded. Indeed, the
> rhetoric of the opinions striking down unconstitutionally vague portions
> of the CDA and COPA suggests precisely that.

On the contrary. The more technology allows a move away from media familiar to Founders, the more likely regulation is going to be encouraged. With regulation comes censorship and restriction. For example, the San Jose Mercury reprints a picture of Tiger Wood and sells it as a poster. The print medium is one familiar to the Founders and therefore, the First amendment is held to apply. Tiger loses his publicity action. An artist paints a fully realized oil of Tiger. Again he probably loses to artistic freedom and the First Amendment. The painter sells a black velvet reproduction of Tiger limited to 100,000 copies. Tiger probably wins his suit as his publicity rights prevail. A video is made of highlights of Tiger's win at the Master's. Again he prevails. The Founders never heard of video cameras.

Radio and TV are regulated and content is controlled. FCC regs deriving from the Federal Radio Commission state, "public interest convenience and necessity" are paramount, saying "there is not room in the broadcast band for every school of thought, religious, political, social or economic." The creative impulse loses out to regulation and censorship. The Courts learned to regulate content on the radio. FCC v. Sanders Bros. This carries over into regulation of content on cable TV -- "must carry rules" -- but the Satellite Customers act limits the ability of remote viewers to receive quality signals from wherever they can purchase, even given a willing seller.

Accordingly I am not at all sanguine that even given victory in ACLU v. Reno, that a producer of creative works will be able to protect them from competing claims and Government regulation. If I attended all Bronco games and concentrated my adoring videography on John Elway and as a result and sell it to a news outlet, I'm a lot closer to First Amendment protection although not as good as if I wrote a series of articles. If I make a copy of my work and a friend puts it out over the Web, either as text or video, Elway's lawyers, the Broncos lawyers and the NFL's are all over me like fleas on a hound.

Hence my question what protection for the creator and will there be any First Amendment that is not drowned in regulation?

Stan Morris

A little rudeness and disrespect can elevate a meaningless interaction into a battle of wills and add drama to an otherwise dull day. -- Calvin discovers Usenet

Stan Morris, Atty
P.O.Box 879
Cortez, CO 81321
(voice) 970-565-3771
(fax) 970-565-2739
<smmorris[_at_]rmii.com> Received on Sat Feb 27 1999 - 23:02:42 GMT