The Rise Of A New Intellectual Property Category, Ripe For Trolling: Publicity Rights

From Mike Masnick at Techdirt

The Rise Of A New Intellectual Property Category, Ripe For Trolling: Publicity Rights

from the free-speech-isn’t-free-when-a-celebrity’s-involved dept

Recently, we’ve been highlighting more and more publicity rights lawsuits, because they’re becoming quite popular these days. Eriq Gardner has an excellent, long and detailed article all about publicity rights, going over the history of it: which involved some common law/case law rulings, and now (more and more) is being driven by state laws (which are often pushed and passed by the industries who are cashing in on these claims). Basically, these are a form of “intellectual property rights” on almost any aspect of a person — their likeness, appearance, voice, mannerisms, gestures, etc. — used for “commercial use,” (which we’ve noted recently is such an ambiguous term these days).

Gardner does a good job highlighting folks on all sides of the publicity rights debate, starting with a lawyer who’s made quite a career out of it, who admits to trolling the internet for anyone using a client’s name on their website in a way that he might claim they’re getting an unfair commercial advantage. That same lawyer, at the end of the article, admits that there’s probably a big First Amendment “slippery slope” problem, but he doesn’t seem too bothered by it.

But those First Amendment issues are pretty big. As publicity rights claims have become more popular, they’re constantly being stretched and expanded:

Most especially, practitioners believe this area has grown hot because of a lack of acknowledged boundaries. A combination of generous laws, ambitious plaintiffs and no consistent bright-line defenses against claims means that attorneys are free to take rights conferred, find jurisdictions where the protections are most generous, and make a claim.

…

“The sky’s the limit,” says Indiana University law professor Marshall Leaffer. “Over the years, we’ve seen publicity rights claims being made on someone’s voice, on a golfer’s swing, even on a sports car identified with a particular racer. A person’s likeness covers a lot. Rights of publicity claims are seemingly impeded only by a lawyer’s imagination.”

And when something is impeded only by a lawyer’s imagination, serious problems come up, leading to all sorts of wacky lawsuits:

Over the years, there have been a number of famous envelope-pushing cases: In a 1985 case, Woody Allen sued over a look-alike in a commercial; Bette Midler later sued over a sound-alike in a commercial; Vanna White brought a VCR manufacturer to court in 1991 after it depicted in a commercial a futuristic Wheel of Fortune host as a robot in a blond wig; in 1993 the actors who played Norm and Cliff in Cheers sued Paramount Pictures for licensing look-alike robots at airport bars around the world; in 2001, the estate of the Three Stooges won a suit filed against a celebrity lithographer for depicting them as “art” on T-shirts; and in 2007, Major League Baseball lost a suit against a provider of fantasy sports games over the use of names and statistics of its ballplayers.

In recent months, the group No Doubt sued video game publisher Activision because it was troubled that game-players could make lead singer Gwen Stefani’s avatar do obnoxious theatrics–like singing about sleeping with prostitutes. The rapper 50 Cent sued Taco Bell over an unlicensed promotion where the fast-food chain asked him to change his name for one day to 79 Cent, 89 Cent or 99 Cent–the cost of its menu items. And, perhaps most infamously, Lindsay Lohan sued E-Trade over a Super Bowl commercial that depicted a “milkaholic” baby named Lindsay, who the actress claimed had been based on news of her troubles with the law.

Of course, a big part of the problem is judges willing to decide these cases with questionably weak First Amendment reviews, such as the recent ruling by a judge in Tennessee saying that a film about a public figure “isn’t necessarily protected under the First Amendment.”

And, of course, you can’t forget the lawyers who are clearly in this to make a quick buck:

Just as important, in many states such as California, defendants often must pay attorney fees to the plaintiff if a claim is successful.

“That’s pretty delicious,” says Neville Johnson, an entertainment lawyer in Beverly Hills…. “The more you fight us, the more you’ll have to dig into your pocketbook. This certainly represents a growth area for our firm.”

There’s a ton more in the article, including how some are using publicity rights claims to effectively “hide” other types of cases (defamation, trademark, etc.) that have much more solid legal boundaries, where those actual claims wouldn’t succeed, but with this wide open field…

If you’re interested in these issues, and believe in the First Amendment, Gardner’s full article is well worth reading. It’s certainly another area of so-called “intellectual property” stepping in and interfering with the basics of free expression.