Re: Advertising violations

On 03/20/99, Peter Yu <peter_yu[_at_]email.msn.com> wrote:
>
> On Fri, 19 Mar 1999, Tyler Ochoa <tochoa[_at_]law.whittier.edu> wrote:
> >
> > Despite the extraterritoriality problem, I am fully in agreement
> > with those who counseled caution and provided contact information,
> > especially in light of the Three Stooges litigiousness, and the
> > expansive scope given to the right of publicity by many courts.
> >
> > I am compelled add that I think this is the type of use that OUGHT to
> > be fair use under the First Amendment. This is clearly political
> > speech, and it seems to me this is much more like a "nominative" use
> > of a trademark than it is like a commercial merchandising venture.
> > But given the courts' treatment of "satire" (use of a copyrighted
> > work to target something other than the work itself), I have serious
> > doubts that my view will prevail.
>
> Even though courts may consider the use of the Three Stooges photos
> as fair use under copyright law, the Stooges' estate will prevail under
> state right of publicity law, since the Copyright Act does not preempt
> state law with respect to human persona. However, if reference is made
> to the Three Stooges' fictional persona without showing the actors'
> physical characteristics (such as in shades, robots, or literary works),
> the case may go in the newspaper's favor. With respect to the fictional
> part, the Copyright Act definitely controls.

Forgive me if I was unclear. I was NOT referring to fair use as a copyright defense. I was arguing by analogy that we should recognize something like a "fair use" defense to the right of publicity. Actually, given the recent restrictive rulings on fair use, I'm not sure we're not better off relying on the First Amendment instead of fair use (although that's been restrictively interpreted in this area as well). I am aware that the Copyright Act generally does not preempt a right of publicity claim, but I'm glad you clarified it for the benefit of others on the list.

I would not count on the fictional persona argument, however. One of the principal arguments in the Vanna White case is that the robot represented only the ROLE played by Vanna White (her fictional persona, if you will), rather than White herself. The court rejected that argument without much discussion. Similarly, the Lugosi court (California) seemed to accept the argument that any likeness of Lugosi as Dracula would violate his right of publicity.

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Tue Mar 23 1999 - 02:10:47 GMT