Re: Advertising violations

On 03/23/99, Robert Cumbow <cumbr[_at_]perkinscoie.com> wrote:
>
> I don't think a right of publicity "fair use" doctrine is necessary,
> since right of publicity, where it is recognized at all, is limited
> to COMMERCIAL uses of the name, image, likeness, etc. Thus any use
> of those for the purpose of news coverage, or in an expressive work,
> or to refer to the individual himself (rather than to evoke a
> suggestion of sponsorship or endorsement or to exploit the commercial
> value of his image) would be fair use already. Unfortunately, some
> overreaching plaintiffs and overprotective (or under-educated) courts
> make it necessary now to wonder whether this will remain a solely
> commercial right or not.

Certainly overreaching plaintiffs and overprotective courts are a substantial problem. As a result, the commercial/non-commercial distinction has sometimes been twisted beyond recognition. It can refer to commercial vs. non-commercial speech, which is a quite limited definition: commercial speech is speech which does NO MORE THAN propose a commercial transaction. Hence, the artistic and expressive portions of print and television advertising are (or should be) protected by the First Amendment unless they falsely imply endorsement.

But courts often use "commercial" loosely to refer to anything that makes money. If an expressive work makes money, why shouldn't the artist have to pay? Even purely "nominative" uses can be money-making, as in the New Kids on the Block case (1-900 numbers for information on the New Kids). Fortunately, Judge Kozinski saw through that argument, but many courts are not so enlightened. "News reporting" enjoys a reasonably strong exemption from right of publicity, but that's eroding too, because of the commercial nature of tabloid-style newspapers and TV.

Finally, it is impossible (or at least very difficult) to draw a principled line between expressive works and "commercial" uses. The Franklin Mint and Bradford Exchange business models, for example, seem to be both expressive and highly commercial. That's the issue in the Tiger Woods case, and I wouldn't count on the court limiting the right of publicity in expressive commercial merchandise.

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Wed Mar 24 1999 - 20:22:55 GMT