Saturday, October 17, 2015

Right of publicity workshop at Yale

Right of Publicity Workshop
Yale Law School
Information Society Project
Abrams Institute for Freedom of Expression
Chatham House rules apparently allow me to disclose my own participation, but not that of others, so I’ll just take some notes on whatever catches my ear.
Introductory Background Briefs       
1.  Current state(s) of right of publicity law: background: nonconsensual use of someone’s identity, sometimes limited to commercial purpose (not commercial speech)
1) The origins of the right of publicity: we have some mythologies about its development; reality takes us in a different direction.  Right to privacy origins: we now think of privacy and publicity as almost opposites—one focused on dignitary harms/secrecy, other on property.  But they originate together—the first right to privacy cases in NY etc. were what we’d now consider prototypical right of publicity cases: Pavesich, etc. Claimed harm was emotional/dignitary, but information was not private (ordinary photo, used on ads).  Instinct that person should be able to control how/when image is used in public, at least for commercial purposes, exists still.
2) Its Evolution: Common story of shift to publicity: actors etc. wanted to commercialize identities; not injured in dignity, but just wanted to be paid for use.  More like an IP right. But this is only part of the story.  (1) Series of decisions that were, I think, a wrong turn—that public figures couldn’t suffer privacy harm from use of images w/o permission. (2) Corporations wanted to take control for themselves of profitable control of individual identities.  Haelan Labs: Romantic language of baseball player’s ability to commercialize identity for own well-being, but this was actually a suit b/t two corporations, both of whom had been given permission by the baseball player—the case was about which corporation would be able to control him. Thus movie studios were advocates of ROP at that time—Nimmer was lawyer for MPAA when he wrote his big article advocating for it.  Maybe movie studios have had cause to regret this!
Zacchini opened the floodgates by rejecting a 1A defense in the context of a news broadcast. 
3) Some Current Contested Places: Many states recognize misappropriation only; some statutory and common law.  States vary in what’s covered—name, likeness (Tenn.); + voice (NY); any indicia of identity (Ala.); evokes the identity (Cal. as interpreted by 9th Cir.); postmortem rights vary widely (NY none, Ky. 50 years for public figures; Tenn. 10 years unless commercialized, then forever; Ind. 100 years). Some states allow anyone to sue; others require commercial value; others require commercial exploitation.  Some who require commercial value assume that use in commercial context evidences commercial value.  Most states limit to domiciliaries, Wash. & Haw. don’t.  Some states require use in ads, but very few. Others: commercial purpose, trade purpose, advantage, any purpose. Forthcoming article in Georgetown Law about this. Utah limits to use that rises to the level of false endorsement.  Exemptions also vary: expressive works, news, sports broadcasts.  Defenses vary too.  Rothman’s ROP roadmap—shocking level of variation.
Contests over evocation of identity; expansion by states in Ala., S.D.; pending NY law for postmortem rights.  Transferability problems; particularly concerning that there could be involuntary transfers in bankruptcy, marital dissolution, NCAA contracts of student athletes.
Conflict with © law; elephant in room: conflict w/1A.
2.  Introduction to the current relationship of right of publicity to copyright, trademark and privacy principles:
A.        Preemption: 301 © preemption and conflict preemption.  Current status: incoherence—some cases find preemption with respect to core uses of copyrighted works used with authorization from the copyright owner, at least for film and photos; others do not; the distinctions offered depend on metaphysical claims that in one instance a copyrighted work is being copied—this is usually offered as the reason when a court approves a standard nonadvertising economic exploitation of a full copyrighted work—and in another an uncopyrightable face or voice is being copied—this is usually offered as the reason when a court condemns an advertising use or the use of a photograph or other image; this distinction doesn’t make any sense even in statutory terms, much less in logic.  §301 preempts causes of action that fall within the subject matter of copyright, even if they are excluded from copyright protection—for example a state claim that tried to protect the uncopyrightable facts in a copyrighted work from copying would clearly be within the subject matter of copyright and be preempted absent an extra element; by the same logic, a state claim that tries to protect the uncopyrightable face or voice in a copyrighted work from copying should also be preempted, absent an extra element such as a false endorsement.  I have also argued, with Jennifer Rothman, that conflict preemption is appropriate in many cases, even if §301 doesn’t apply.
Particularly notable because the ROP as accepted in Zacchini is arguably simply common-law copyright: the relevant question should be who is the owner/author of the unfixed performance.  Siegel article makes the point that Zacchini’s harm claim here would be the same if he’d launched a pig out of a cannon instead of himself: his claim is not a personal, dignitary one, but an economic one, similar to the dominant US account of ©.  If the common-law copyright reading is correct, then preemption would be broad, although the issues would then intersect with the current ferment surrounding performers’ ability to claim authorship rights in works of performance that they haven’t exactly consented to being filmed in.
B.        Ownership of creative works/interference with exercise of copyright rights even without preemption. Question of whether people are any better off when dealing with large entities or whether contracts are just written more broadly: the right protects people who made their deals before the right exploded, not afterwards.
C.        Incompatibility of First Amendment defenses/theories between TM and right of publicity: 9th Circuit cases in which TM claims fail on First Amendment grounds, Brown v. Electronic Arts, but RoP claims based on the same acts—presence of depictions in a video game—succeed, Keller v. Electronic Arts, because the RoP case uses transformativeness as its test.  RoP broader even though its justification is purely private, as opposed to the ostensible consumer protection objectives of trademark.
Note previous discussion of exemption for “expressive” works.  1A perspective: Say what? They’re all expressive.
D.        Privacy: in general something that is truthful and open to the public is fair game, at least as to well-known figures; right of publicity breaks through the barriers otherwise used to limit privacy torts’ interference with First Amendment interests.  Commerciality might be used as a limit that had an internal relationship to the justification for the right, but presently it’s not, at least in California. 
3.  First Amendment theories relevant to thinking about right of publicity
Strategic point of view: Bias against the visual; not just from the law—it’s a human reaction.  Affects willingness of people to approve control—a written work of fiction is deemed more ok than an image.  How do you deal with that from a 1A advocacy perspective?  Here, more than in other areas, standard of review matters enormously.  Reed v. City of Gilbert: enormous significance.  [I agree, except I also think w/the concurrences that the Court can’t possibly mean what it says; if it does, then the 1A is Lochner and regulation is basically over.  If it doesn’t, though, we’re in for years of incoherence as it’s applied in some cases and not applied in others.  But see below for a cogent critique of my blitheness.]  Reed majority says a law is content based if, on its face, the state has to look at content to figure out if it’s protected, and then it’s strict scrutiny/presumptively unconsititutional. Combined w/Sorrell, a big deal.  Breyer concurrence: result will be watering down of strict scrutiny, which is not so good.
Lawyers have a tendency not to take cases as seriously as the judges who write them meant them.  Twombly rewrote the law of civil litig. by having district judges pass on litigation by reading a complaint.  Bar didn’t believe it, and lower ct judges for a while didn’t believe it.  That’s not what they thought a motion to dismiss meant; but now it’s cited in every case.  Same was true of Goodyear about personal jurisdiction—J. Ginsburg rejected Cardozo’s opinion of years before, scores of years of litig. and said there’s no general juris. over a corp. except where it’s “at home”—principal place of business/registered to do business.  Thought the Ct. couldn’t have meant that, but it’s clear that it did.  Also true of NYT v. Sullivan; no defense bar as such when the case came down, when such cases were dealt w/by private detectives and not 1A lawyers—thought it was specific to the civil rights context. But we learned that libel law had been federalized and constitutionalized.  Reed will be the same.  1A side has a much better chance of getting strict scrutiny than previously.
A particularly attractive way to think about Davis v. EA from 1A perspective is to view video games as a new form of fiction. Syllogistically true: fiction is protected if not defamatory; video games are fiction; thus unless there’s discrimination against video games/the visual, video games should be protected.  But there is!
Bottom line advice: be careful not to seem to mock the notion that there could be protection in this area, given the fact that lawyers who don’t work in ROP context think there should be ROP in images.
What is the nature of the “right”?
With most IP rights, there are lots of predicates.  With ROP, the only standards are there must be some kind of evocation and some kind of use—lack of clarity on what right does/doesn’t protect is intimately bound up with lack of clarity on why we have the right in and of itself.  So if we could justify the ROP we could think about how that translated into rules and limitations.
(1)   Incentive-based.  But incentive to do what? Become a celebrity?  Efficiently manage your image?  More IP-oriented.
(2)   Consumer protection mechanism, way of preventing false endorsement/misleading consumers.
(3)   Privacy-based.
(4)   Self-expression/self-definition from control over one's image to constitute self as human being.
(5)   Inherent moral right: it is me and therefore I own it.
(6)   Unjust enrichment/fairness.
(7)   Labor/reward—moral right that isn’t dignitary
(8)   Economic harm: use could harm the person’s career b/c of the way in which someone is used in the ad—compare Google v. Garcia
No one can realistically believe that people want to become star athletes to get endorsements. [I’m not so sure.]
But what about people who are famous for being famous?  Didn’t mean looking ahead to exploitation—they wanted to be famous.
But these people work hard to become something, and you’re exploiting that—free riding.
Even if we thought it gave you an incentive, whether we thought the law needed to encourage it would be different. But anti-free riding impulse is different from incentive story.
Incentive story is ex ante; free riding story is ex post.  People who’ve invested their labor in sports, or in being famous, have done something society considers to have value and as a moral/natural rights matter they and not someone else deserve the rewards. Unjust enrichment.

If a bunch of fans got together and programmed a noncommercial football game using images of the players, bets that courts would feel very differently about it.
Ability to make a lot of money off of Nike shoes seems like a fair reward for working hard to be a celebrity. A fairness concept.  The difficulty is that spread well beyond Nike shoes to other expressive media just b/c people pay for expressive media.
Expansion of law happened on advertising side—using a name to promote a commercial product isn’t fair; meanwhile, the media bar ignored it b/c we weren’t concerned about advertising until it bled over to (other) 1A issues.  [Which was always weird b/c those ads were always protected by the 1A if not false/misleading.]
But if it’s unfairness, not clear why it would be limited to advertising.  If I make a lot of money from a movie, why is that any better than making a lot of money from a car dealership?  False endorsement.  But false endorsement also crept into movie cases!  Theory of harm from use of the image where people might believe you signed on to this and that might harm your image or block you from other deals.
UK—no right of publicity as such.
Unjust enrichment doesn’t fully capture it—litigation is always after the fact; it’s principally whether someone should be paid for it.  One side: person ought to have the right to say no ex ante, whether you can do it or not, even if you’re willing to pay—that aspect got lost in Keller and Hart where after the fact it seems so easy to just create a settlement/pay. Principal reason to distinguish b/t advertising and non-ads is that we don’t want that kind of control to exist over non-commercial speech.  Not fair to give people ex ante control over non-advertising speech about them.
Boundaries of what is perceived as commercial goods/services. Box of cereal = yes.  Description of me in a textbook = no.  But T-shirt with picture on it?  What is that: expression or product?
We have in the 1A a doctrine that is supposed to do that: commercial speech.  Box of cereal = yes; you in movie/game = pretty clearly no.  Merchandising right: interesting.  Poster of Che Guevara, bust of Martin Luther King—it’s not advertising, but the right of publicity is the expressive use.  Who thinks rights should cover merchandise like T-shirts? Basically no one in this room.  But most of the litigators in the room would accept such ROP coverage to save the other stuff.
But unjust enrichment has bite in that case, where the only thing being sold is a representation of the celebrity—T-shirt w/Rihanna, bust of MLK.  Money solely by capitalizing on fame.  May also be a dignitary issue that underlies it—Tom Waits’ distaste for advertising.  Maybe we’d like to be able to give people control over what types of products their image appears on.
Conflating two separate discussions: we don’t value most of these interests highly.  Can we identify the motivations for the recognitions of the right?  Do we accept any of them.
Strongest claims are Bette Midler-type: I don’t do ads and you made me look like I did. But you could structure the law just to protect that.  Could allow people to get injunctions, but not damages and not alienable right to injunctions.  No right to trade it for money.  Kim Davis bobblehead doll: if she doesn’t want a doll that says “praise Jesus” every time you shake it, should she be able to effectuate that?
John Gotti has a more valuable ROP than the current Nobel Prize winner in chemistry—what does that tell us about incentives?
Political economy: they find a celebrity from the state and argue for protection based on the value of their persona. 
Tort rights exist for the mishandling of a dead body; but are ROP the same kind of rights?  Stated as control over economic value—not the same as dignity.  Why not postmortem defamation law to protect dignity/family?
If we talk about the deceased celebrities’ rights, the justifications above often go away.  The issue of endorsement by the estate is accepted in TM law; though that acceptance is circular/we don’t really ask about whether people think the estate has actual interests.  Astaire’s widow promoted postmortem rights b/c her husband was an in an ad dancing with a vacuum, but it turned out she licensed that.  Legislature responds to dignity, but that’s not how people behave and it ends up being about money.
9 times out of 10, when someone calls looking for money b/c the image is already out there, the reason that they are mad is that their friends saw it and made fun of them/thought they endorsed it.  The moment you think of that as being you, your reaction is “they shouldn’t be able to do that to me.”
Many comments here have depended on lesser protection for commercial speech. If SCt abandons that distinction, have to wonder if the result on noncommercial speech would wind up being less protective. 
Yes!  B/c scrutiny would diminish, but also in terms of Jacobellis/Bose issue of appellate review of initial determination (e.g., of deception/endorsement, as w/the findings of the FDA/SEC etc.). 
© gets a 1A free pass; we don’t even ask the question.  My worry is that ROP will be put in that category—it’s ©-like and therefore we don’t have to ask the 1A question, per Zacchini.
We’re not going to escape false endorsement as a successful theory, but commercial speech doctrine is the only way to protect media companies. 
You’re making money = commercial speech is an error courts are too willing to fall into.
SCt has been inconsistent w/its definitions of commercial speech.  Doctrine is important, but bad cases make bad law, like Midler v. Ford where she didn’t want to be in ads (though note she changed her mind); White v. Samsung (they called it “the Vanna White ad”); Facenda (didn’t help that internal email said that this was just about exploiting the NFL brand).  That’s the problem w/video game cases too—you can say the SCt has decided that video games are like books, but lower courts still think it’s merchandise.  [Here is where the caution about the Court being serious may help: the Court was almost certainly serious about the video game thing, so if EA gets cert the chances of being reversed on this are high.]  It’s not just video games; it’s comics, it’s low art, it’s Saderup’s cheap drawings.
Merchandise: similar to ads in the substitutionary effect; if the person wants to sell themselves, there’s a big difference b/t single/small numbers of prints and multiple copies, which you do see in some of the statutes.  If an unauthorized producer makes the bobblehead, you can’t make your own and make as much money. 
Like the myth of “life story rights” need for the movie industry. The only reason for them is release from defamation/privacy claims, and maybe cooperation; it’s also a signal to the industry that “we’ve got this guy.”  But you don’t need them if you’re willing to take those risks. Does freedom to make a biopic w/o “life story rights” decrease the value of those rights?  Sure. But so what?
Technology: came across in Keller arguments that there’s a fear of replacing people with avatars, and you can make anyone into a movie. Tupac can sing on stage again. Fear that the law needs to address that in a new way.  Nobody in the motion picture industry will ever use actors again!  That got dampened in the written decision, but came across clearly in argument—recognize that this fear is driving decisions.
Would have been a different decision if it had been a NCAA board game with player cards. Interactivity seems dangerous.
Could be captured by a false endorsement theory.  [Except that false endorsement itself can be read so broadly as to suppress speech, which is why we got Rogers v. Grimaldi.]  Judges would also likely be willing to expand the concept of false endorsement to ensure that even pretty clear disclaimers didn’t work.
It’s really an unfair competition claim—usurping Tom Cruise’s ability to work if you replace him with an avatar.  If people invest in something valuable and someone else completely appropriates your value, that’s unfair competition. 
Tom Cruise might have a dignity interest too, but if you just use dead celebrities, it’s just like using robots. Visual image thinking is magical thinking—a picture of you is more of a capture of you than writing about you.  Versus “robots will destroy everyone’s job.”  [See the movie The Congress.]
But Motorola v. NBA destroyed that broad concept of unfair competition—also the Restatement of Unfair Competition, which says all that’s left is hot news and false endorsement.
If courts felt like the level of appropriation was significant enough, courts would expand the tort again.  If I fly a drone over the stadium, or stream a prize fight through my cellphone, wouldn’t that count?  Some disagreement on this point.
False endorsement is something we have to accept, even if it can be misused—we’ll never win that allowing false endorsement is ok.  [Again, I think Rogers v. Grimaldi weighs against that in its strong form.]  But we can get freedom to operate for other things outside the scope of false endorsement.
In 4 states this year, SAG argued that Zacchini supports their view that you can’t have avatars.  They see this as a labor issue, and they want to extend it, at least for a while, to the families of deceased celebrities.  We have Tom Cruise in movies all the time through parodies—have lookalike actors. 
At the same time, Elvis estate goes after Elvis impersonators. 
We have to try to explain why none of the interests outside false endorsement are enough to justify a cause of action, or what the place to stop is.  Very strong anti-free riding impulse in courts and in society generally, even though society couldn’t exist without free riding.
Do we value copyright more than we value the right of publicity?  It’s nonutilitarian.  Free speech is supposedly embedded in © but it’s alien to the ROP—burden is on defendant to prove that free speech outweighs ROP, but that’s backwards.
Avatars v. cartoons: people are used in the Flinstones (and the Simpsons) all the time—judges are worried about replacing the real people.  But what would the narrow rule protecting them be?
The only original thing Tom Cruise does is act—if you can recreate that digitally, he’s gone. But live football games are different—Brett Favre can play live football and no digital substitute exists for that. 

But the same is true for acting! Live theater remains a separate option, and G-d doesn’t give you a right to a business model.
The contracts will also change so that an actor will have to consent to being used in subsequent video games (and even movies) in order to get the contract to make the initial movie.
Interests change from case to case, so you’re fighting with a phantom.  We need to put the burden on the other side w/strict scrutiny to show what gov’t interests are at stake.  Presumptions matter in litigation.
Avoiding the 1A: the Restatement (3d) of Unfair Competition test for ROP has very clear exclusions.  But the problem is that the states have ignored it.
Alabama: had an exception to an exemption MPAA didn’t like—as a sop to MPAA, they threw in “for purposes of trade” and then commented that they were using the Restatement (3d) of Unfair Competition.  So that’s better than Cal./Mo./etc.
Look at exemptions for creating a piece of art, but not reproductions—you didn’t need high tech to put mass art in disrepute.  The next Andy Warhol is not safe.  The role of the visual/embodiment v. the word is a real discrimination.
Less confident of variety of state courts’ ability to implement non-constitutional limits. 
If courts perceive this as on the boundaries of the 1A, one risk is that faced with too much 1A judges will say, treat it like the FDA on labeling, SEC, etc.: throw it all out of 1A if bringing it in will involve strict scrutiny.
More likely: we’ll get more strict scrutiny like review of FDA and SEC.
More likely: ROP will be treated like ©, largely outside the 1A—real risk; no 1A scrutiny. But in contrast to © we lack robust internal limitations. 
But ROP is not a matter of federal constitutional provision.
Cf. Gay Olympics case: property right in name or likeness.  We won’t get strict scrutiny b/c will be viewed as part of IP exception/independent and unique [or, actually, not unique!]
Principles similar to fair comment would lessen the pressure to impose a 1A constraint—it’s only in the 1960s when pressure comes to a head on defamation. So a good enough definition of the tort would take care of a lot of const’l problems.
But then you wind up w/50 different states and a whackamole problem—can Alabama have these books or not?
This leads to a question: should we have a federal ROP?
But defamation didn’t have 50 different flavors—the flavors aren’t all that different. There were uniform law types of movements. Such have failed w/ROP.
Problem is trying to create 50 states w/sufficient carveouts. What if statute in California had the same carveout for live people as it did for dead? Then Keller comes out the other way. But California will never do that.
Important people live in all jurisdictions, but famous people are concentrated.  But it doesn’t take many famous people to get a ROP passed in a state. 
Only a fed statute or 1A will answer the question. We need to make consistent arguments about why the 1A mandates strict scrutiny.
Ohio and several other states have bright line exemptions.
A SCt decision is the only practical solution b/c that wipes out the differences.  But that brings us back to offering a coherent definition of what the right should be.  The justifications offered may or may not withstand strict scrutiny: we need to think about how that might go. 

False endorsement: that will withstand strict scrutiny/commercial speech scrutiny.  Unfairness—unlikely to survive.

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