Re: Advertising violations

On Tue, Mar 23, 1999, Tyler Ochoa <tochoa[_at_]law.whittier.edu> wrote:
>
> 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.

The main problem why the fictional persona argument does not work in Vanna White is because the court, most notably the Ninth Circuit, fails to define fictional persona consistently. If a fictional persona refers to the abstract persona that is ORIGINAL and independently created by writers, Vanna White's role in the game show certainly does not constitute a fictional persona, but rather her human persona. The Norm character of Cheers, however, depicts an original fictional persona, for that persona is substantially different from George Wendt's own human persona.

This fictional persona argument makes sense because, under the existing copyright scheme and Feist, authors are rewarded with copyright only if their works are original. A persona that looks and feels substantially like the actor's human persona would hardly be original and does not merit copyright protection. By contrast, a persona that is substantially different from the actor's human persona is not only original but is a new expression that is of social value. Thus, it is consistent with existing copyright law to reward with copyright protection those writers who created a new and original persona. (See 20 Cardozo L. Rev. 355, available at http://www.yu.edu/cardozo/journals/cardlrev/v20n1.html).

Peter Yu
<peter_yu[_at_]email.msn.com> Received on Fri Mar 26 1999 - 11:15:12 GMT