Re: Advertising violations

On Wed, 24 Mar 1999, Bob Cumbow <cumbr[_at_]perkinscoie.com> wrote:
>
> On Tue, Mar 23, 1999, Greg Ikonen <gikonen[_at_]venlaw.com> wrote:
> >
> > On Mon, 22 Mar 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.
> >
> > Prof. Ochoa's point bears repeating: The Ninth Circuit is a
> > particularly grim place to find yourself as a defendant in a right
> > of publicity case (at least when applying California law). In
> > addition to the Vanna White robot case (in which Judge Kozinski
> > wrote a scathing dissent), there is the Bette Midler "sound alike"
> > case, and another robot case brought by those titans of entertainment -
> > Norm and Cliff from Cheers. I believe in the plaintiff prevailed
> > (though one or more of those decisions may have been in the posture
> > of a motion to dismiss).
>
> One small quibble: The Cheers robot case was brought by the actors
> who played Norm and Cliff, not by Norm and Cliff themselves, as Greg'
> synopsis implies. It seems a frivolous point, but it's actually key
> to the case, since the defendants had a license to use the copyrighted
> Cheers material--including the images of the show's characters. The
> plaintiffs maintained that, notwithstanding that license, the use of
> two robot standees at the end of the bar evoked, for consumers, not the
> images of Cliff and Norm but specifically the images of actors George
> Wendt and John Ratzenberger. Their claim survived a summary judgment
> dismissal motion, and the 9th Circuit affirmed.

Like many others, I have been following this fascinating line of discussion since the beginning and am still finding myself shaking my head in wonderment at this "right of personality" situation. For those of us in far away (non- US) places, it seems somewhat bizarre for an actor to be able to raise a challange to a legitimate licensee's use of a show's licensed merchandise. Is there an end to this? At what point can a licensee feel comfortble that they will not get a claim from some extra from episode t#3 of (say) Cheers, who feels lke trying for some extra spending money this Christmas?

Did it not strike the actors (in the Cheers who ran this claim) as strange that they should seek to stop the very activity that keeps them in work? As Oscar Wilde so elegently put it (this is from memory so please forgive any misquote): the only thing worse than being talked about is not being talked about. An actor who is excluded from a homage/reconstruction/ whatever should feel paranoid about their ability to draw an audience.

This isn't a defence of unauthorised use of images to imlpy endorsement or similar, but fame has its price and it seems a very risky path for the law to be heading if it grants to the famous, special rights which are denied the rest (and more modest part) of the population. The Elvis Estate is a particularly savage example of the Personality Beast and it even tries its claims in Australia where (surprise surprise) Tennesee law has no jurisdictional weight at all. But the current parallel diuscussions in this network, discussing extra-territoriality and the Internet, makes the prospect more real by the day.

Hi Ho. It'll keep us all in work for another decade at least.

CS

"Galvanising Ideas"

Colin Seeger, Consultant, Management of Intellectual Property. P.O Box 3227, Tamarama, Sydney, Australia 2026 Tel: (61) (02) 9365 1186, Fax (61) (02) 9365 1286 <seeger[_at_]ozemail.com.au> Received on Sat Mar 27 1999 - 03:59:12 GMT