Monday, June 04, 2018

Right of publicity: Legislative initiatives

Legislative Initiatives:  What matters
Moderator:   Daniel Kummer, NBCUniversal Media, LLC

Panelists:     Vans Stevenson, Motion Picture Association of American, Inc.
Uniform Law Comm’n has a project this year to create a uniform draft law for all 50 states. We, among others, have opposed that program. We don’t want to have to lobby in all 50 states at once.  NY: pending bill; Louisiana also, w/bill sponsored by IP lawyer who’s looking at NY for what happens. Trying to solve an issue for a locally famous French Quarter musician.  Last 20 years, 14 states have worked on ROP litigation MPAA engaged w/directly. Cal. 1999: Fred Astaire’s widow went crazy on a ruling on an instructional video clip of Astaire protected by 1A. Could have dealt w/digital avatars back then but then didn’t.

Kummer: postmortem extension is the biggest issue—why is that?

Stevenson: biopics; dealing w/the heirs of famous people esp those who aren’t actors.

Gena Feist, Take Two Interactive Software, Inc.: We didn’t see a digital avatar problem; don’t fix something that doesn’t exist.  Lohan/Gravano: ruled that the current statute applied and that we didn’t violate it.  Pending legislation rewrites 2 sentences into 4 pages, adds postmortem element, and adds digital recreations of actors. There’s been over 100 years of litigation over 2 sentences; don’t change if there’s not a current problem. If there is a problem, it’s that there is no fee-shifting or motion to strike procedure to get rid of these cases quickly.  [anti-SLAPP law!]  There’s extortion from people who say “that looks like me!” and T2 can afford litigation but small game makers, of which there are many, can’t.  The games people are unclear about expressiveness are simulation sport games, not games like Grand Theft Auto where there are 100 hours of storyline.  The Lohan/Gravano argument focused on “disguised advertising”—can you put something in the game and then use it for advertising/mugs?  Going forward, that’s an interesting issue. Another issue resolved in the opinion: though sufficient similarity may be an issue for a factfinder, there is a threshold issue of whether there’s enough to get to a factfinder that a court can and should resolve on a motion to dismiss.

Edward Rosenthal, Frankfurt Kurnit Klein & Selz PC: NY has generally gotten it right; dangers to NY industries if there’s a big change. [Solution in search of a problem.] If you really want a postmortem right, that’s a 1 sentence fix to the statute, not a total rewrite.

Feist: a postmortem right doesn’t necessarily protect creators. Perhaps a nontransferable right for families would go a long way—avoid ROP trolls as there are patent troll groups, copyright troll groups.

Kummer: worry is that young performers will be forced to sign away rights early in their careers.  Are exemptions counterproductive by suggesting that everything else is subject to ROP?

Stevenson: exemptions for expressive works are designed to increase certainty. We don’t want the cases brought in the first place against motion pictures, magazines, etc.

Feist: if it encompasses all 1A rights, there’s no argument against it. But she can’t imagine a bill that expands the right and then carves out 1A protected rights that increases certainty unless it is incredibly clear and incredibly strong and includes fee-shifting/motions to strike—people are suing [T2] now based on a law that’s already really clear.

Stevenson: generally works well for us. [yes, b/c you are representing legacy media, and Feist isn’t.]

Kummer: countering emotional appeal of actors/players claiming rights over their digital avatars?

Stevenson: Paul Newman: if you are a producer (as he is) how are you going to do certain kinds of stories w/o a real exemption? Much high-level talent also works as producers, writers, and you explain that.

Kummer: deepfakes?

Feist: it’s a solution looking for a problem. Actors say they don’t want to be cast against their will, that’s very sympathetic but it’s not happening outside of porn—deal w/specific and narrow problem, not all movies/video games. Also, the problem w/that industry is that it is unlikely to respect any laws NY might write against it.

Rosenthal: identity theft doesn’t need to be addressed through the ROP at all. Likewise revenge porn. So too with “deepfakes.”

Stevenson: Legislators often want to make a name; don’t care about whether an existing law or another law would work [SESTA/FOSTA!].  Also they don’t care about the 1A: they say let the courts figure it out; they’ll get the credit for the law regardless.

Kate Klonick: wants to push back on ROP as inappropriate for deepfakes—there absolutely is going to be a big deal in which people want to watch Harry Potter & Hermione Granger as played by the movie actors having sex.  There are dignitary and expressive harms that occur.

Feist: but then you can’t have an expressive works exemption (for regular movies, video games, etc.) as opposed to having a special targeted statute.

Stevenson: political advertising is exempt, but deepfakes for politics are going to be a big problem.

Q: digital avatars: Tom Cruise doesn’t need to be in Mission Impossible 8. That’s sympathetic.

Stevenson: we drafted language with SAG-AFTRA that could cover that, but in reality it’s covered by union agreements/contracts.

Q: similar to sports games: you’re having them do what they do for a living and not paying them.

Feist: for living actors, that makes some sense, but for dead ones it doesn’t. You’re not taking the dead one’s salary. A dead actor’s “right” to earn for their families is different from a family interest in not seeing a dead parent endorsing products 30 days after their death.

Stevenson: great advice: if you don’t understand it, kill the bill!

Rosenthal: a couple of other things about last year’s NY bill. It abandoned domicile and allowed anyone to bring claims in NY. Extended statute of limitations from one to three years, and adopted a discovery rule. We know from © how difficult this can be.

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