Re: Advertising violations

On 03/25/99, Peter Yu <peter_yu[_at_]email.msn.com> wrote:
>
> 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).

I agree that the Ninth Circuit has been inconsistent, but I'm not convinced that the distinction you draw is the best solution. In addition to Ari Kahan's point that there have been a number of blond actresses who have played Vanna White's "role," I think it is extremely difficult, if not impossible, to separate the "fictional persona" of a character from the persona of an actor who is closely associated with the role (especially where he/she is the only person to have played the role). The essential aspects of the character's personality are the product of the interplay between the character as written and the actor's interpretation of that character. My initial impression is that it's an unworkable distinction as a practical matter.

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Mon Mar 29 1999 - 21:51:15 GMT