Integrating the Right of Publicity with First Amendment and Copyright Preemption Analysis
Courts aren’t paying enough attention to First Amendment concerns, and copyright preemption analysis is too indeterminate. Solution: integrate these two strands and focus on the right issues, rendering the law more coherent. Taking the right of publicity as a given and seeing what constraints ought to apply. We take Zacchini as a given as well.
The right of publicity is a content-based regulation of speech. The state targets certain content: names, likenesses, indicia of identity (I think here is where the content-based argument is most obvious—to determine that someone’s identity has been indicated, you need to look at the message received, whether you do that with a survey or with inference, and that’s a content analysis). But it’s also regulating commercial speech, which is easier to regulate. (Unless you’re targeting comic books (TCI v. Doe) or prints and T-shirts (Saderup).)
So, under Central Hudson, you have to have an important governmental interest directly advanced by the regulation with a reasonable fit. Though opinions differ, all or most of the justifications advanced for the right of publicity are probably important enough—privacy, labor theory, personality rights, economic incentives. Autonomy interest—people having an innate interest in being able to define themselves and who they are. Deceptive advertising is also an important governmental interest.
But if we’re dealing with noncommercial speech, we have problems. A content-based regulation generally attracts strict scrutiny. So what about Zacchini? Well, maybe that’s just an odd case, but we need to deal with it. We ignore some of the dicta in the case about state interests and focus more on why people feel sympathy for Zacchini: the autonomy rationale. People shouldn’t be forced into performing against their will. That intrudes on their ability to express themselves.
So, the right of privacy or autonomy or deceptive marketing interests might justify extending the right of publicity to noncommercial speech, at least for living celebrities.
Copyright preemption: §301 doesn’t help; what about asking whether there’s a substantial/undue interference with copyright owners’ rights? Congress took the position that the 1976 Act wouldn’t invalidate existing state laws on privacy and deceptive marketing. If that’s correct, then a right of publicity doesn’t substantially interfere with copyright owners’ rights. But if consenting performers can inhibit the exercise of copyright rights for other reasons, that is an undue interference. So if the state confers a right of publicity to confer an economic incentive, then that’s essentially a neighboring right—something the copyright act doesn’t confer. Those invocations of publicity rights do create a substantial conflict with the right to exploit a copyright.
Three step test: (1) Whether the plaintiff consented to the type of use at issue. If yes, stop. (2) Whether the use is for purposes of trade as defined by the Restatement of Unfair Competition. Good screen for First Amendment/copyright analysis. If the use is commercial speech, it’s for purposes of trade. Most uses in expressive works would not be viewed as for purposes of trade, with exception of wholesale appropriation of a person’s entertainment, modeling, or spokesperson services. (What counts as wholesale appropriation?) Restatement also takes the position that the use of indicia of identity on merchandise is a use for purposes of trade. If you satisfy the second step, you have to go to the next step. (3) Would regulating the use satisfy the applicable level of First Amendment scrutiny? If the use is in commercial speech, it probably does. If it’s an expressive work but is a wholesale appropriation, it probably does, but there’s a question of remedy. If it’s expressive merchandise, it can overcome First Amendment challenge only if supported by plausible privacy, autonomy, or prevention of deceptive marketing interests—maybe only available to living celebrities.
Q: Phrase key to your analysis: “right to exploit the work.” Where is that in the Copyright Act?
A: Shorthand for reproduction, public performance, etc.
Q: But those rights are all negative—right to prevent others from reproducing: you can enjoin/get damages. Copyright owners don’t have a positive right to reproduce.
A: He disagrees. Some laws can interfere with exercise rights, but states can’t confer rights on other people to veto some uses of copyright.
My Q: given your justification for Zacchini, subsequent caselaw, especially Bartnicki v. Vopper, erodes the foundation of Zacchini, at least to the extent that there’s a public interest in knowing about the act.
A: That was a content-neutral law.
Samuelson: Not exactly; she would distinguish Bartnicki on the basis of public interest. (I’d say that Bartnicki invalidated the wiretap law because it was applied to speech in the public interest, which is a content analysis; and under “public interest” caselaw, Zacchini’s performance probably rises to the level of public interest.)
In Search of (Maintaining) the Truth: The Use of Copyright Law by Religious Organizations
Religious motivations for claiming copyright: If you’re religious, you likely take your doctrine pretty seriously. Suppose someone splinters off and starts writing terrible things about your religion. Scenario 2: imagine that you’re given a revelation and you write this down. And it turns out that your revelations from Jesus are being misinterpreted, and you want to enforce a copyright in the stuff Jesus told you to write down. So religions claim copyright as a means of censorship and as a means to preserve doctrinal purity.
Three types of censorship: (1) Prevent negative publicity--Scientology. (2) Squelching dissent and breakaway fragments—Worldwide Church of God v. Philadelphia Church of God, in which splinter group embraced original doctrine and mainline church said the doctrine was outdated. (3) Destroy competition. Preserving doctrinal purity (which also seems to me to cover censorship (1) and (2)). Christian Science actually sought and received a copyright extension for its key works; this was overturned, but was an attempt to preserve doctrinal purity.
Should religious organizations be using copyright law? Given copyright’s underlying theories, how do religious motivations play out? Regardless, do these religious motivations align or conflict with substantive copyright doctrine.
Theories of copyright: economic; property rights—Lockean or historical; cultural. Lockean theory gives copyright owners a right to control Problems arise with respect to differences in rights compared to real property—right to exclude and durational limit. Right to exclude isn’t as absolute as with real property—have to endure unauthorized uses. Scientologists want no one to use their works in a way that conflicts with their religion. Cultural: that’s the whole reason for claiming copyright—to fix a meaning. Then you have to engage with the theory that works don’t actually have fixed meanings.
Doctrinally: copyright doesn’t recognize supernatural authors. (But it does recognize Supernatural authors.) Three ways courts have of dealing with this: (1) agnosticism: we don’t know whether it’s authored by God, so you get a copyright—in some sense, religion still loses because God’s authorship is not acknowledged; (2) a human being wrote this, and the original expressions of the human are copyrightable—only some of the work is protected; (3) factual estoppel—worst for religious organizations. If doctrine is represented as fact, then the organization can’t switch position and claim that their doctrine is just philosophical musings. Fundamentally, copyright claims for religion are wrong-headed and don’t fit.
Matthew Sag: WW Church of God: Armstrong registered the work initially as a work for hire. Should we accept that initial choice and allow the Church to censor it once it renounced his views? Armstrong’s decision to register as work for hire should be as divinely inspired as the rest of his writing, right? Claims to religious privilege in copyright cases are always incoherent: they don’t make sense in our system.
A: Illustrates why works always have multiple meanings, which is another reason religious claims don’t fit.
Q: Ok, but organizations bastardize copyright law all the time. Mattel sues not to protect Barbie from piracy, but to protect Barbie’s image. Are these legitimate motivations? If they are, what should they be doing?
A: Looking only at religious uses. (But we could learn something about appropriate arguments in copyright, maybe.) Also, religious claims are different: they are claims of divine right, not moral right. Third, it doesn’t matter whether we focus on religious organization—if people are using copyright for censorship or to preserve meaning, the arguments apply.
Secondary Fair Use
What liability should be imposed on tech that may harm the motive for creative works. 20th Century: Endless cycle of industry status quo v. disruptive technology. Then comes a tussle between authors and technologists; ending in new legal regime, either through Congress or courts; then new market status quo.
General framework: ex post division of profit affects ex ante incentive to invest, based on Lucien Bebchuk. Model: one technologist, one author, who can inflict harm on one other (though this is here expressed as the technologist being able to harm the author). Assumes equal bargaining power and costless bargaining. Ex post, three possible scenarios: both technologist and author should operate; only technologist should operate; only author should operate. If the harm is relatively small, both will act and the owner of the property right will either take all the value (if the author has no right to block the technologist) or they’ll split the difference (if the technologist can be blocked by the author).
The parties can’t predict total value, only probabilities. Model shows what will happen given various values and allocations of rights. Under some circumstances, authors and technologists will overinvest because private value exceeds social value.
Descriptive and normative payoffs: We can now understand the difference legal decisions make for investment and harm reduction. Some configurations will produce negative investment or highly excessive investment. Depends on what we worry about most. Also helps us map the cases—what work does inducement theory do? Grokster uses a property rule—in one configuration of rights and payoffs, technologists have negative incentives to invest in harm, meaning a positive incentive to cause harm and increase their payoffs. Inducement theory takes that incentive away—if they deliberately cause harm, technologists lose the protection of the law for their models. Sony is not Grokster because Grokster fit in the little value-great harm case but Sony was great value-great harm.
Normative payoffs: what should courts do? Change the rules ex post according to how the values have materialized. So parties will make better investment decisions. Also suggests that statutory damages should be abolished in cases of secondary liability because it makes it hard to match actual harm to damages. (I suspect this is much better understood in the paper, where you can see the tables and equations.) Also suggests that legislative intervention once the facts start to become apparent, to do things like requiring Macrovision or create safe harbors.
International and Comparative Projects
Are Geographical Indications Facist? The Battle over Brunello as Cultural Icon, Global Commodity, Postmodern Symbol or Romantic Ideal
EU approach: GIs are indicators of cultural meaning. US approach: GIs are just a type of TM, determined by reference to consumer understandings. But he thinks both are oversimplifying. Often cultural meaning drives market value. But culture and market meanings can both evolve, and sometimes conflict. Project: anatomize the conflict. Cultural is a parallel source of evidence, informing the way we construct/interpret the market meaning of a mark.
Brunello scandal, about a year ago: famous Tuscan wine, GI. Has to be 100% grapes grown in the region, using special clone of varietal. Scandal was one of adulteration: allegations that many leading makers were mixing in other grapes. Big money at stake: 1 million bottles impounded, some of which sell for over $100. Allegations of mafia involvement. Not one in which cultural/market meaning conflict, it appears—preserving the cultural meaning also avoids passing off.
Look deeper: why do manufacturers risk their reputations by blending with inauthentic ingredients? Answer: global demand for limited product—all these hedge fund billionaires snapping up cases of Brunello—a global market that could only be fed by cheating. Look at Champagne, another famous GI with a similar problem. They simply amended the statute, annexing a lot of surrounding land and magically transforming into it into the GI. Traditional meaning was subverted to serve the cause of market demand.
Turned out Brunello wasn’t just adulterated to cut corners—some producers thought that the result was a better wine, rounder and fuller. Conflict is culture-based: dead hand of tradition stifling innovation. But: quality is in the eyes of the beholder; critics disagree over what makes a better wine, and this ties into ideas of unsophisticated Americans who can’t appreciate the real thing.
A lot of GIs have been shaped by global trade. Chianti Classico has been revamped a huge number of times.
Is culture purely subservient to the market? Not entirely; culture is a limit on market value. Champagne couldn’t import grapes from China.
Should we protect culture in the strong sense, as if cultural understandings were market rights? He thinks no, but we can look to culture in cases where a product enters a new market—say a new cheese shows up and consumers don’t know much about it. Some may think it’s just cheese, and some may have some regional associations or other associations. Culture may guide us for whether we want to protect the cheese name, and in what ways. Analogy to doctrine of linguistic equivalence: a word’s meaning in another language may be fairly fixed, and we don’t want that meaning to be too different here. (Good thing that doctrine wasn’t applied to the meaning of “football”!)
Justin Hughes: What’s a one-sentence rebuttal to those who romanticize GIs?
A: That’s part of the descriptive piece: GIs have always been unfixed and arbitrary, involving invented traditions. There’s no ground to romanticize them.
Q: two views of GIs: good things that reflect culture or bad things that reflect an attempt to squeeze market share unfairly. Which is your view?
A: he wishes to reject strong claims to absolute, sacred protection. But he doesn’t want to say there’s nothing to culture and history either. He wants to distinguish Johnny-come-lately inventions from GIs that do have the weight of history behind them, even if the history is one of change over time.