Re: Advertising violations

On Tue, Mar 30, 1999, Tyler T. Ochoa <tochoa[_at_]law.whittier.edu> wrote:
>
> 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.

I agree with Prof. Ochoa (and Prof. McCarthy) that it is extremely difficult to separate the "fictional persona" of a character from the actor's persona, especially when the individual's human persona is closely associated with the role. That is the reason why I do not propose to dissect the character and to determine which part belongs to the fictional persona and which part belongs to the actor. In fact, a fictional persona is only established if an average lay observer can recognize from the audiovisual character a personality that is substantially different from the actor's human persona." If the human persona is intermingled with the fictional persona, there is no substantial difference, and the character does not deserve copyright protection. The actor should therefore be protected if his or her likeness is used.

This fictional persona distinction may not be the best solution; however, this may be one of the best possible solutions. Unlike physical property, intellectual property, by its very nature, is intangible and has vague boundaries. Any test that attempts to define a boundary in intellectual property, such as the idea/expression dichotomy or fair use, is inherently difficult. Nonetheless, having a test is better than having no test, otherwise actors can interfere with the copyright holder's use of its creative work. Since the entertainment industry is particularly concerned with the predictability and stability of intellectual property laws, uncertainty on this issue increases both the cost of contracting and the litigation expense.

One may wonder why we should not leave this to entertainment and licensing contracts. Correct me if I am wrong, but from what I learnt from entertainment law practitioners, many actors, esp. Hollywood superstars, do not sign contracts. (It's really incredible that the entertainment industry can still flourish without these contracts) Thus, whenever a dispute occurs over the use of the actor's likeness and the fictional character, courts have to resort to intellectual property laws, rather than contracts.

Peter Yu
Benjamin N. Cardozo School of Law
<peter_yu[_at_]email.msn.com> Received on Thu Apr 01 1999 - 03:07:16 GMT