Re: Advertising violations

On Mon, Mar 22, 1999, Dan L. Burk <burkdanl[_at_]shu.edu> wrote:
>
> On 3/20/99, 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.
>
> This comment seems to me to completely miss the point of Professor
> Ochoa's comment which was that state right of publicity law should not
> override the First Amendment anymore than copyright law should (Zacchini
> notwithstanding). It is a constitutional question, not a statutory
> question.

Nothing actually "overrides" the First Amendment. I think it is more useful to regard copyright, trademark, and right of publicity as LIMITATIONS on the First Amendment. Also keep in mind that while copyright generally is of issue where two parties' First Amendment rights conflict, trademark and right of publicity are limitations on COMMERCIAL speech, which enjoys a lower level of First Amendment protecton to begin with.

Bob Cumbow
cumbr[_at_]perkinscoie.com
206-583-8566 Received on Tue Mar 23 1999 - 16:22:50 GMT