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What principle would a court have to create to exempt this ad from Trump's right of publicity?
Monday, April 25, 2016
Two right of publicity possibilities in the news
What principle would a court have to create to exempt this ad from Trump's right of publicity?
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4 comments:
Wouldn't it matter that the connection between Prince and Corvette had already been made by Prince?
Probably not: without consent to the use, truth alone isn't enough to avoid a ROP claim.
Minnesota has no postmortem ROP, but for the sake of argument, if it did, we'd also have to know how Minnesota would treat the concept of "identity," and whether it is meant to be as broad as the definition in Illinois. Corvette doesn't use his name, only a couple famous words from a famous song. As far as I know, there are no trademark rights in the Little Red Corvette lyrics. And I'm not as convinced that the Corvette tribute to Prince "proposes a commercial transaction." The Jewel court did leave open the possibility of speech by commercial entities that wasn't commercial - isn't it possible that Corvette is really just "mourning"? Call me hopelessly optimistic, but I'm not as convinced of the outcome of this one, even in the Seventh Circuit.
Fair enough! This is not a hill I want to die on either way in terms of whether it's commercial speech, though I can't imagine it's not a use of his "identity" if identity is protected beyond a specific list of characteristics: with the combination of birth/death dates, date of publication, and the famous line, it can be about no one else but Prince. (Also, I wouldn't be surprised if some legal entity started claiming rights out of Indiana on his behalf; Indiana tried very hard to give everybody access to its ROP.)
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