Monday, June 04, 2018

Right of Publicity, Litigating the Claims

Litigating the Claims

Rick Kurnit: told the story of litigating the White case, in which the author of the panel opinion didn’t know what a letter-turner was. Had to go to trial with a jury, all of which regularly watched Wheel of Fortune.  Jury found that robot was Vanna White, and that she was endorsing the TV being advertised.  Awarded more on the Lanham Act claim than on the ROP claim.  What about parody?  Spent no time on that, parody wouldn’t help b/c parody just means they’re the same [parity].

Nathan Siegel, Davis Wright Tremaine LLP: Cultural trend favoring celebrities, and willingness to view a celebrity’s “story” as quasi-property of the celebrity. This has become pervasive, so more judges go into cases w/ a presumption, almost incredible to 1A advocates, that people have a right to control the marketing of their story. Cardtoons case: additional inducement for achievement from ROP often inconsequential, b/c most personalities are adequately compensated. Even w/o ROP, the rate of return in entertainment & sports is high enough.  I agree, but that’s not a shared sentiment today. People don’t seem bothered by a billionaire like Michael Jordan winning $10 million for a congratulations taken out in Sports Illustrated.  Opposing speech interests are discounted more often than 20 years ago.

Cultural backlash against the media. In this genre we’re seeing a particular tendency to view sports/entertainment as fluffy and avaricious.  Exploitative in some fundamental sense. Not really worthy of deference in the same way as news & political speech. Judges issuing the worst decisions in this area, such as trial court in de Havilland, Porco, NCAA—relatively liberal judges. Feels like, in an era where people feel the need to attest to their anti media bona fides, that’s one way it happens on the liberal side.

Things to think about: temptation is to argue w/intellectual abstractions, such as transformative use. Need to frame in appealing, common sense way. Why does the breadth of the right not make sense?  Pitch it as a matter of control before the fact. The cases always come up after the speech, so it looks like we’re arguing over “why didn’t they get paid?” But the right is a right of personal control before the fact, and that looks a lot different. Everyone shown in a clip could control the right to broadcast the clip ever again. [This was an important point in the FanDuel amicus that Mark McKenna & I recently wrote.] Rarely just about the P; usually there’s a significant group of people involved who could theoretically bring the same claims. How could every single person have an individual right of control? [aka anti-commons property] If everyone had a right to control how their image was going to be depicted in advance, that’s a veto for everyone.  De Havilland isn’t just about de Havilland. If you have two people feuding, should each one be able to say “you can depict the feud as long as I win it”? Seems to be a notion among some judges that docudramas are icky—neither fish nor fowl, taking documentaries one step too far by quasi-fictionalizing them.  Just a modern TV version of historical fiction, a genre that’s been around for 100 years. 

We should think of the 1A as the last resort, not the first resort.  It’s an extremely defensive way to frame the case. The 1A only comes into play if there is a right under state law. So we are conceding that the states are saying that celebrities do have that right, and we’re asking for special protection. That’s generally unnecessary b/c most state cts w/common law or state laws didn’t intend to call docudramas and sports programming into question, whether or not they put a specific exemption in. Think first about pushing back on scope.  Copyright preemption is another potentially successful argument.

Push back on the notion that this is an IP right.  Take all the Nobel prize winners for science & ask what the value of their ROP and match that against the ROP of Al Capone’s estate—the latter is more valuable, though he didn’t contribute anything creative or useful. ROP doesn’t award effort, just fame.

In the long run, need to push that Zacchini wasn’t a ROP case. Confusion in the case itself and subsequently.  It’s a common-law © case: broadcast rights of event producers.  Not in the short run, that’s the best chance to cut the legs out of this area.

David Schulz, Ballard Spahr LLP: what judges lack is clarity about a structure for the theory: what is protected and why. Most judges think they’re working w/in the law and want to do justice. Start to be very clear about the structure we’re building and the societal interests at stake. Should frame things in Rogers/Gugliemi terms: how we describe what’s being challenged here. Is it something that can be fairly called public discourse, news, entertainment—things intended to convey information—or is it an effort to sell/advertise a product. Whichever world you’re in, 1A principles differ but also state law principles differ.

Spahn: case in which P alleged that a book about him was fiction despite being advertised as fact; similar to Eastwood case in California.  Can justify a claim under this as a kind of “sham petition” claim—not really nonfiction as advertised.  Subsequent case law (Arrington) about using pictures to illustrate articles: Is there a reasonable relationship b/t the picture and the content?  If so, no claim.  Messenger case: girl sued for use of her picture in an article about a letter writer who’d gotten drunk & had sex w/men. Court agrees, but the P argued that it was more like Spahn—Court of Appeals doesn’t want to say Spahn got it wrong so it adds bad language to distinguish them; Spahn holds that ROP applies to totally invented biography, as if that was a special category, and was only trading on the persona, but then adds loose language: Sec. 50 applies when an article purporting to be newsworthy is so embellished/fictionalized that it can’t be said to fulfill the purpose of newsworthiness.  Porco: movie about a young man who killed his father/tried to kill his mother—sued b/c they used his real name and argued that he had a claim b/c it was substantially fictionalized.  Appellate court allowed that to proceed to discovery. Would be better to start w/asking if something was for purposes of public discourse, not purposes of trade; if so, no NY right. We know total fiction is protected, as is total truth; there’s no sense and no predictability in saying that somewhere in the middle there is a claim.

Annie Pell, NFL
Dryer case: building a record on newsworthiness. Experts opining that NFL Films weren’t ads.  Survey of consumers showing that more than 90% saw these programs as sports/entertainment and not as ads/infomercials. Marketing prof opined they weren’t ads—longer, no explicit sales message, not paid spots, listed in TV Guides, won Emmys for TV and not awards for ads. Branding and advertising are two very different things—enhancing the value/brand was no different than the way in which a celebrity bio enhances value of brand. Like pre-game and post-game shows, always treated like that by networks. Sports marketing agent for ROP licensing who said they weren’t recognized w/in the industry as ads or endorsements and that players don’t expect compensation for these types of appearances.

How to deal w/handful of internal NFL docs produced in discovery that Ps argued showed that the NFL’s intent was to build brand?  Value derived was as great as a big ad budget.  Sports Illustrated described NFL Films as a really effective propaganda arm.  But they were so not b/c they proposed a commercial transaction but b/c they were really good content.

Finally, distinguishing Facenda, which 3d Cir found to be commercial speech: separate product references, countdown to release of the game described in the “infomercial.”

Spiegel: Fictionalization doesn’t fit within Section 50/51, but it’s hard to go before a court & say we have a right to fictionalize (where a state, like NY, lacks a false light claim).  Easier to focus on disclaimers: show that it’s based on a true story. As w/ Messenger, where defamation claim failed b/c the letter was signed “Anonymous” and reasonable readers would not think that the depicted model was the author of the letter; no reason to override that conclusion w/a ROP claim.

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