Saturday, October 17, 2015

Right of publicity workshop part 2

How is the “right” to be reconciled with the First Amendment?  
Could be part of the vast universe of communication that isn’t protected speech: Fred Schauer’s writing.  Contracts aren’t protected by 1A, etc.  Could just be market behavior. That won’t work for ROP b/c so much of the regulated stuff is art.  [And commercial speech.]  Not low-value in SCt sense.
Next: explaining the tort involves subject matter restrictions, viewpoint restrictions, content restrictions—thus you get strict scrutiny and need a compelling state interest, narrowly tailored.  If it were judged this way, it couldn’t pass. There’s always a less restrictive alternative: to create a prize system for celebrities; create a compulsory license scheme.
Next: strict scrutiny is irrelevant to defamation torts.  Content-based, viewpoint-based, speaker-based.  1A applies to certain classes of expression and remedies.
Next: Double down on Zacchini and argue that the publicity tort is just like ©, an info production device/engine of free expression with built-in 1A exemptions and rules.  Not very persuasive; have to believe the purpose is info production and that’s not persuasive.  [Unless Zacchini is limited to its common-law copyright core where the right is one over his performance and not a right based on identity.] Also, not sure there’s a generally agreed-on 1A-friendly limits like idea/expression and fair use.  Grimaldi perhaps attempts precisely this: to graft onto the tort a set of things kind of like fair use (also see analogy to TM law). 
Next: this is secretly a privacy tort and no one knew about it.  Inequalities of power/need to trust another party can found fiduciary duty, and thus falls outside 1A.  Doesn’t think this works either.  If you think ROP is dignitary in part, maybe this works.
Next and his suggestion: based on commercial/noncommercial speech distinction.  Commercial speech doctrine treats certain classes of speech as unprotected entirely: false or misleading. To the extent ROP involves false or misleading attempts to hawk a product, this is just consumer protection law. But not all of ROP can be so described. (1) if not false/misleading, it either has to survive strict scrutiny or has to be classified as truthful commercial speech regulable under Central Hudson.  (a) He is falsely claiming I endorse his product—unprotected.  (b) Noncommercial use of name/likeness—protected.  (c) Most interesting: commercial speech but not purely misleading or false: Central Hudson, but until recently that gauntlet was easier to run and allowed state to engage in somewhat broader regulation than ordinary political/cultural speech would allow.
If rt limited to misleading commercial speech, overbreadth and prior restraint doctrine doesn’t apply, making existing law make sense.
That all made sense 5 years ago, but it’s Tony Kennedy’s Constitution and we all just live under it.  INS v. Sorrell put into Q the difference between the standard track for public discourse regulation and the commercial speech track—content-based and speaker-based restrictions = heightened scrutiny even for commercial speech. That really screwed things up, since commercial space is always content-based and speaker-based.  Sorrell didn’t touch the false/misleading v. nonmisleading commercial speech distinction, though, and as long as that’s in place it’s possible to justify a slimmed-down ROP.
How do you define commercial speech?  One Q is whether all forms of what Dogan & Lemley have called false endorsement to be a proposal to engage in a transaction.  If yes, then no problem.  If no (playing music at a political rally is allegedly false endorsement, according to many singers), then there is an issue. Would a ban on false political endorsement survive strict scrutiny?  I think yes.  Not pure consensus in the group.
Thin conception of ROP leaves false light and defamation on the table, as long as NYT v. Sullivan standard was met. 
When you limit the tort to false endorsement/no relationship to use of person’s likeness, courts just have a knee-jerk reaction to the need to compensate people for a wrong done. Has had judges say: if you follow Rogers v. Grimaldi, it eviscerates the right of publicity.  Which, yes.
What if there’s an advertising use where the person actually does use the product, but didn’t consent to the use of her picture for an endorsement.  Literally true: how does that come out?  Maybe the state can’t require more than a disclaimer under conventional commercial speech doctrine b/c it’s only “potentially” misleading rather than “inherently” misleading. 
How does Abdul-Jabbar come out? Truthful claim that Alcindor was the 3-time champ; ct says commercial context means audience believes there’s an endorsement.  It’s misleading, that produces a remedy, but it’s not clear whether the remedy is ban or disclosure. 
Tom Cruise avatar appears in the film without permission: that’s a different case though you can imagine an endorsement story. 
Rogers is not an ordinary false endorsement test from the perspective of nonconstitutional false endorsement law.  It explicitly rejects dependence on every source of evidence that courts traditionally consider in nonconstitutional false endorsement cases.  There is an error-avoidance rationale for this, but (1) that needs some justification in itself, and (2) it doesn’t explain the no artistic relevance prong, which is a rump unfair free riding justification. 
Commercial use is usually ordinary public discourse/strict scrutiny.  Commercial use doesn’t mean that we’re at commercial speech. 
Is disclosure enough?  That is a Central Hudson question.
A movie in which Tom Cruise is portrayed being himself seems like an easy case.  It’s only the Tom Cruise avatar playing another character that seems to drive courts crazy. 
Can a false endorsement turn something that isn’t otherwise commercial speech into commercial speech?  [Compare a standard false advertising claim: BMW funds a film in which BMW is shown, among other things, performing well and passing emissions standards.  Can a regulator challenge the factual representations made in the course of the otherwise 1A protected film? I think the answer is yes, though very few people in the room agree with me.  I’m also a fan of Rogers v. Grimaldi, though.  But I am willing to believe that false endorsement claims can satisfy strict scrutiny even for noncommercial speech (which Alvarez actually suggests).  Only Alvarez can save us.  Alvarez forces us to ask: Falsity over what? What harm does the falsity do?]
Suppose it’s a disparagement of someone else’s competing product in the BMW-funded film.  I think that’s still commercial speech, like Lexmark, but lots of people disagree with me.
Jewel v. OSCO: Judge said—yeah, on its face it’s a congratulatory ad, but the only reason they took this ad out was to promote their own products. If you’re using the commercial speech doctrine, we have to face the reality that corporate entities put their names on stuff to sell products, even if those products aren’t named in the ads.  Positive association w/BMW.  [Which is why falsity is such an important constraint on the regulator’s ability to act!]
Baseball cards: modern ROP starts with images on baseball cards. Packaged w/gum, but not advertising the gum.  That doesn’t seem like commercial speech to me under any test articulated.  But it also doesn’t seem to be possible to get to Haelan’s result and apply strict scrutiny.
NFL Films: gets a commercial benefit from producing its films, but fully 1A-protected despite its economic interest.  [I agree, but it’s not b/c no factual representation was being made.  It’s b/c the alleged falsity in Facenda wasn’t sufficient to justify gov’t intervention.  This is why I care about Alvarez: Alvarez tells us that falsity isn’t enough; the falsity has to do a certain kind of harm, which can be determined wholesale in some cases and retail in others, in order to justify regulation.  Facenda isn’t a problem because it treated films as a subject of regulation, but because it considered that the possibility of consumer confusion about whether Facenda endorsed NFL Films over and above having announced for the NFL for decades was significant enough to justify liability.  The harm to consumers, or to Facenda, from this purported confusion was not enough (not to mention not proven with nearly the certainty one would want before suppressing a message truthful on its face).]
Broad dissent on the assumption that commercial speech doctrine will remain as it is.  Kennedy may be wrong, but what he said was that content-based distinctions are presumptively unconstitutional and that speaker and content are both ways to get to presumptive unconstitutionality. [Which is why I think that the FDA and the FTC and the SEC are very much in danger from many of the theories we might advocate to get rid of the ridiculousness of the ROP.  There’s a reason that the SCt dismissed Nike v. Kasky as improvidently granted—you couldn’t write the opinion for Nike without clearly driving a stake through those regulatory agencies.  The Cal. SCt had the right idea about defining commercial speech through factual representations for purposes of false advertising law.  Though no one here agrees w/me.]
Is it plausible that there will be nothing left of the tort if the SCt abolishes the commercial speech doctrine? Or will we be left with the worst of both worlds—strong ROP because that’s a property interest, no FDA?
As a practical matter: We’re not going to end up with a world in which falsity in commercial ads is going to be treated as favorably as falsity in political ads. 
The real risk of applying strict scrutiny then is withdrawal of scrutiny from ROP in its entirety. 

If the real likelihood is being thrown into a category of its own, we need to look at whether there are internal limits on the ROP.  They could just say it’s not a new exception but an old one: Zacchini, Gay Olympics, copyright are all the same and all ok/exempt from the rest of 1A doctrine.
Uses that seem troubling to other people—worries about judges wanting to create some remedy.  So what can we think of that will be second-best?  [I think that may be unambitious, given that the defamation bar thought the same thing pre-Sullivan—of course there will be remedies for abuses!]  If we go with false endorsement, then most merchandising uses will be false endorsement.
Nobody knows what merchandise is after the 3 Stooges case.
Yes, but you can say that many instances of merchandising use involve a plausible claim of false endorsement—when marks are used as products, that implies endorsement, or at least (doesn’t believe that) courts have accepted that theory for pure use of image on T-shirts.  So as a practical limit, use of persona as intrinsic part of product is actionable b/c that causes confusion.  [So what’s left of Rogers after that?]  [This is why we need to think about the justification for Rogers as part of this inquiry!]
The key is framing Davis sympathetically, when the equities all seem to lie w/the other side for lots of people.  Frame these issues ex ante: censoring the depiction of history in realistic media, whether a video game or anything else. Consider a videogame about simulating elections: Should Dan Quayle or Hillary Clinton have the right to say no?   What about Manuel Noriega?  Right to control how anyone can experience the video game: practical problems—that’s a lot more attractive than “should we share the revenue after the fact?”
Functional products v. expressive works.
But a poster of Che Guevara is clearly an expressive work and courts throw it on the other side of the line.
Sure, Cal. SCt screwed that up with T-shirts.  A T-shirt is a functional product that may have expression on it; just b/c you could put expression on it doesn’t make it protected by the 1A.
But the cts have said that it’s unprotected even if  you put expression on it.  There’s a whole body of case law and instincts.
SCt doesn’t care about lower courts.
But it may care about instincts.

There’s a distinction from using a likeness in an expressive work (calendar) to advertise a car and we shouldn’t let them be mushed together. 
Baseball card and statue are only valuable as expressive works, whereas a T-shirt and a coffee mug have value aside from that.  Saderup didn’t like having T-shirts be sold so they made up a test to prevent that.

Average person would be comfortable with a rule that says “you can’t sell T-shirt w/Michael Jordan’s image on it w/o permission,” but sees value in video games.  If you bring people along to the result that these games can’t get made/can’t get made without private censorship, they’ll reject the ROP claim.
What if the SCt said, we can address that using eBay? Might just say that there are all sorts of situations where these images are paid for, and so we should just create a licensing regime.
No one would make such a game and await suit with no set price.
Compulsory licensing?
Licensing is still unfair treatment of video games v. biographies—no one would say that it’s ok to have a damages-only remedy for biographies.  We all agree on the truly historical expressive works.  The fact that people do make life rights agreements doesn’t mean they have to; some judges and in-house counsel seem to be under the misimpression that life rights agreements are required—but the practice of doing it risks building it into the law.
Doing it to eliminate risks. [But why doesn’t that mean that courts could reasonably say “get a license or do not make the movie,” as they do with copyright?  Going forward in a world in which everyone else gets licenses looks negligent.  Not that I agree with this reasoning but I understand why judges mistake the meaning of these agreements.]
Trying to figure out an answer to: “if we rule for EA, isn’t the T-shirt allowed?”
Lawyer can respond: “that’s not my case.”
Doesn’t think that will work; thinks an exception will be found for ROP, though own normative take is unlikely to be adopted by SCt. So we need to frame some built-in speech protections like speech.  Fiction is compelling but dangerous.  One problem was Davis disfavoring realistic portrayals—jeopardizes nonfiction.
We need to articulate something the SCt can adopt at least in broad outline if it doesn’t do the details. At least for realistic depictions, in noncommercial speech, X should be protected.  That are not exploitative.  [What does “not exploitative” mean?]  I like Rogers, but you could read ROP out of existence that way b/c everything is artistically relevant—which most of us like, but not everyone will. 
Many state statutes have language excluding from the scope of ROP the core 1A stuff. One could make an argument that, like fair use and idea/expression for ©, those are constitutionally required as an overlay and they have the advantage of existing in many states; it’s not totally foreign.  If those get strong enough through statutory analysis/constitutional avoidance, you narrow the problem even if you lose the tchotchke cases.
Hard time w/concept of constitutional overlay/privilege—looking at defamation etc., the only reason we have a constitutional overlay is b/c SCt decided that lots of speech was protected and came up with definitions of acceptable versions of the torts.  We always thought defamation etc. weren’t speech w/in 1A. This is clearly speech, not an unprotected category; what justifies a constitutional overlay?
Structurally the issue is a little broader—it’s not so much that these are nonspeech categories, but pragmatic view: certain forms of regulation are inevitable; we want privileges/overlays when courts think there’s something inevitable.  (1) we don’t need to say child porn is non speech to recognize that it will remain regulable. (2) libraries are going to engage in viewpoint based content selection; inconceivable not to do so. Island Trees: there’s an exception/overlay for partisan political viewpoint discrimination—a broader phenomenon than just defining things out of the 1A.
With this SCt, the one hot button issue is that they shouldn’t recognize a new category of unprotected speech—good for our side.
Hustler v. Falwell: we don’t need a new privilege/overlay, just a recognition that this is asked and answered by NYT v. Sullivan. You need a provably false factual statement (endorsement) that does harm; maybe intent to imply endorsement is also required.  All of these cases are about end runs around libel laws to control what people will say.
The problem w/fair use is that we don’t even know what it is we are fairly using. Still haven’t figured out the core of this right that’s worth protecting/allowing other to use.  Transformativeness test was from fair use, and it’s incommensurable.
Can ask for constitutional purpose, or purpose of the right.  If you say this is about false commercial speech as the paradigm case, then you would say that what Congress/state does in creating tort is to ensure the free flow of truthful info about sale and purchase of products; tort assists us in that purpose.  That’s not what a lot of people think the tort is primarily about, but it could be. Dignity/misappropriation/free riding version would be different. 
New state IP rights to identity in general—not ok.
Don’t advocate for less than what you want: strict scrutiny for everything, then strict scrutiny for noncommercial.
But Gay Olympics, ©, etc. may make that a dangerous pitch.
Does the pitch have to be, “you blew it in Zacchini” or “you need to cabin the acceptable result in Zacchini”? If the latter, you need a theory of the 1A under which the cabining works.

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