Saturday, April 04, 2009

BC Law Review Symposium, panel 3

Publicity, Reputation, Commerce & The First Amendment

Diane Zimmerman, NYU Law

Not all things we think of as IP will offend a First Amendment theorist. Trade secret: We respect rights not to speak, so much of trade secret law is acceptable under the First Amendment. Similarly, free speech doctrine is not that friendly to false/misleading speech. But outside of copyright, IP has a problem—when the label property gets placed on an interest, suddenly the image of dollar signs changes the way speech regulations are approached by many courts and they start balancing property versus speech. Is that legitimate?

Used to be that noncommercial use of persona was privileged, but use in advertising or products, or even some forms of commercial entertainment (Elvis lookalikes) would violate the right of publicity. This was based on a view of what constituted commercial speech that is now quite outdated. Leave aside commercial advertising uses for her purposes, and deal only with nonadvertising uses, including merchandising (coffee mugs, T-shirts).

Whatever you think about the First Amendment’s role in ads, there are speech concerns in these areas. Horror story: The Tony Twist case, Doe v. TCI--$15 million verdict (down from $24 million) bankrupted a comic book publisher because of the use of a hockey player’s name for one character who appeared in a fraction of the issues. The court admitted there was a free speech interest at stake, but found defendant’s intent to obtain commercial benefit sufficient to allow a jury to decide whether the commercial benefit outweighed the plaintiff’s property right.

That’s an example of a balancing test; the others are peculiar and troubling too. The Restatement of Unfair Competition sets out the common-law approach: if the use is a use on a product, plaintiff presumptively wins because that’s not expressive. That’s plain silly. You don’t put Springsteen’s face on a t-shirt because it’s a beautiful decoration; you do it because people who buy it want to express something about themselves, their origins, their allegiances. Also, the Restatement says that use of a persona unrelated to an expressive work is actionable, because the speech interest is subsumed by the property interest. But magazines use celebrity images just to attract attention all the time.

Saderup: Cal. S.Ct. came up with a test for the explicit reason of trying to salvage publicity rights against a very serious First Amendment defense. Why take transformativeness from copyright, which is provided for in the Constitution? Anyway, a realistic depiction of the Three Stooges violates the right of publicity, but turning Johnny and Edgar Winter, musicians, into half-worm, half-human characters in a comic book, that’s transformative. Wacky.

Then recently, the 8th Circuit applied the Missouri Doe v. TCI rule in a way that seemed to invalidate all right of publicity claims, by saying that information in the public domain was free to all comers. Conclusion: chaos! Because if you try to fit the right of publicity into any kind of normal First Amendment analysis, it doesn’t work well. This is content-based regulation, identifying prohibited subject matter. How did we get to a point where we’re balancing right of publicity against free speech? Money—courts will look at an economic interest and analogize it to physical theft. But that is a false analogy.

Many people take comfort from Zacchini, which Zimmerman thinks is not a true right of publicity case. But using Tony Twist’s name is not the same thing as paying Tony Twist to play hockey, which was the issue in Zacchini. Lowe v. SEC: The Court said there would be real First Amendment problem to combat securities fraud by preventing a former security adviser from publishing a newsletter. P&G case—economic interest in barring newspaper from publishing harmful information was insufficient to justify suppression.

Roberta Kwall, DePaul Law

Wrote about the right of publicity and the First Amendment a while ago. Now interested in a particular factor she identified: morally based harm, where the use is an affront to the plaintiff’s dignity or autonomy interest. The Fat Boys case, where personas were used in a beer commercial when the Fat Boys were anti-drinking. Another case: Jackie Mason v. Jews for Jesus. JfJ used a caricature of Mason on the cover of a recruiting pamphlet—“Jackie Mason … a Jew for Jesus?!” Inside, there was a riff on his routines. But he’s not a JfJ; he’s an ordained rabbi.

The courts don’t do well understanding morally based harm in a right of publicity action. The autonomy and dignity interests at the bottom of some conceptions of the First Amendment are also at stake in the right of publicity as dignity.

The cases Zimmerman reviews don’t work to protect dignity interests. Money has nothing to do with dignity-based causes of action. In Doe v. TCI, looking at the predominant purpose of the defendant has nothing to do with the dignity-based harm. Likewise, the “actual malice” test used in Hoffman v. Capital Cities has nothing to do with dignity. Intent and money aren’t the right questions.

Two questions for a court when a plaintiff is largely or primarily concerned with dignity: (1) to what extent does the defendant’s use force the plaintiff to say something she doesn’t want to say; (2) to what extent does the defendant’s use of the plaintiff’s identity create a link between the parties? When a persona is compromised by a portrayal that the public understands as emanating from the persona, then there is a right of publicity violation. This test can show where First Amendment interests should prevail even when there is a dignitary harm—fictional portrayals aren’t compelled speech and don’t create a linkage; people understand the fiction doesn’t come from the persona. Use of Carol Burnett’s Charwoman character in Family Guy to mop the floor in a porn shop—the public understands that the parodies aren’t authorized, thus they don’t cause dignitary damage of the kind she recognizes. Closer case: when a political campaign uses an artist’s song as a theme, and the artist strongly disagrees with the politician—is that compelled speech? Is there a possible public link of the persona and the candidate? Something to discuss.

Moderator: Stacey Dogan, Northeastern University School of Law

She was struck by the difference in presumption between the two approaches. Zimmerman: presumption is that speech may not be limited absent a good reason. Kwall: if there is a harm, there’s a presumption in favor of protecting against it, which the speaker must overcome.

If the harm is dignitary, the right of publicity might be a bad idea. The vast majority of dignitary harms arise from clearly protected speech. So just because there’s some commercial hook in some instances, that doesn’t make those instances the right ones in which to address dignitary harm, when so much more harm is left unaddressed. Dogan drew an analogy to the argument I make about dilution in Gone in 60 Milliseconds.

Question for Kwall: what do you think about the merchandising right? Depending on the answer to that question, Kwall and Zimmerman may be far apart or close together.

Kwall: Wants a multifactor, context-sensitive test.

Zimmerman: She thinks courts are moving away from the newsworthy/commercial distinction, and are recognizing that other kinds of uses, including product uses, have major speech implications. Once you own up to the fact that a T-shirt is a form of speech, then it’s hard to explain why it’s not protected the way a newspaper is. We should be applying strict scrutiny!

Dogan: To her, the right of publicity is about TM law. If publicity is false endorsement, then §43 covers the waterfront. So we could abolish the independent right of publicity without trouble.

Q: How would the dignity claim survive death? Also how do you deal with postcards showing John Wayne wearing lipstick, titled “it’s a bitch to be butch”?

Kwall: if it were up to her, she’d protect personas under a theory of moral rights, but in a very cabined way. Attribution would be a requirement; you could use someone else’s persona/work as long as you identified that this was not emanating from them. And she’d terminate the interest at death.

Dogan: the problem of circularity/feedback effects—licensing practices develop in the shadow of court rules. Courts should thus draw lines early on, to protect speech interests.

Q: How would you apply dignity to Hustler v. Falwell? How would it change if it were actually a Campari ad?

Kwall: The Court said that no one would believe Falwell actually endorsed it, which is what she’d do too. If it were an ad, would it be construed as an endorsement? (No.)

Kwall eventually gets to the place where the dignity harm is being misrepresented. Dogan points out then that criticism alone leaves you with no claim. (Zimmerman points out that laudatory presentations have also been historically considered potentially actionable in false light, but most states are now collapsing that into defamation and that’s dying out.)

Lidsky: Rapp v. Jews for Jesus: same case, but not a celebrity—false light. Fla. S.Ct. used it to declare that it wouldn’t recognize false light as an independent cause of action; have to meet defamation’s standards. But the standards are different in publicity cases.

Zimmerman: we should rethink that separation. S.Ct. has said that privacy as a justification for regulating/punishing speech regularly doesn’t rise to a sufficient state interest. We haven’t used the right set of standards for evaluating publicity, though maybe we now have in privacy since those cases are so hard to win.

Papandreau: Why not return to the tort of misappropriation? If the only actionable dignity harm is misattribution, then why do you need the right of publicity? Consider what’s going on in the law of misappropriation in New York.

Kwall: The problem with misappropriation: same ills as IP generally—undefined and standardless, and almost discredited. Misappropriation might not advance the analysis.

Kwall for Zimmerman: What does she think of the idea of the plaintiff having speech interests, or autonomy/self-realization interests, in her own persona?

Zimmerman: She doesn’t think it’s two speech interests, but one speech and one self-realization/liberty interest, always in tension in a First Amendment system because unpleasant, cutting, hateful speech regularly causes the target to cringe. People’s feelings about themselves are subject to possible assault. That’s just the constitutional scheme.

Dogan: But if you define dignity only to included compelled speech, then there may be a speech interest.

Zimmerman: compelled speech is rare; disclaimer would be better.

Kwall agrees on disclaimer remedy.

Me: I don’t get the difference between Kwall’s (1) and (2). How can a copy of my image be compelled speech by me? I am not my image. Or, more specifically: how can there be any harm of this type without false endorsement? What she means by coerced speech is unclear to the extent it means anything other thus false endorsement. And the Burnett example, among others, makes it important to ask whether her definition of false endorsement is normative or empirical; it sounds empirical. But false endorsement, as we just discussed, is manipulable: suppose the plaintiff is Paris Hilton. Isn’t it easy for her to convince the public that all representations of her are endorsed by her?

Kwall: There’s a relation between compelled speech and linkage. Compelled speech goes not to public perception but the defendant’s taking the plaintiff’s image and using it in a way that makes the plaintiff look as if she’s saying something she isn’t. (I still don’t get how you know what the plaintiff looks like she’s saying without evaluating what the audience sees.)

Q: Why worry about the dignity of celebrities and not the dignity of other people?

Kwall: She wouldn’t draw any distinctions.

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