Freedom of Speech

Real People, Real History, Real Problems

|The Volokh Conspiracy |

One of the challenges arising from an unchecked right of publicity is the ability of people to shut down commentary and depictions of them that they either object to or want to be paid for. Two-time Academy-award winning actress Olivia de Havilland sued over Catherine Zeta-Jones's portrayal of her in a biographical miniseries on the FX Network, Feud. Manuel Noriega, the Panamanian dictator, sued over his inclusion in a video game, Call of Duty: Black Ops II, which included historical figures, footage, and scenarios to provide a historical backdrop to its military-themed game. Student and professional athletes asserted the right of publicity as the basis to object to uses of their likenesses, characteristics, and playing statistics in video games that include historical team rosters. Even heirs of the deceased have gotten into the act, suing over memorials, posters, and statues honoring the dead, from depictions of Martin Luther King Jr., to those of Elvis Presley, Rudolph Valentino, and Rosa Parks.

Although it is often said that the right of publicity is limited to commercial advertising, this has never been the case. From the time of its privacy-based origin to today, claims for the unauthorized use of a person's name, likeness, or voice have been successfully asserted in the context of motion pictures, newspapers, news broadcasts, comic books, video games, artworks, and political campaigns.

The breadth of today's right of publicity laws and the insufficiency of First Amendment defenses to limit such claims stems in large part from the U.S. Supreme Court's 1977 decision in Zacchini vs. Scripps-Howard Broadcasting. In Zacchini, the only right of publicity case ever heard by the Court, the Court rejected a First Amendment defense in the context of a news broadcast?a type of speech that is usually favored when it comes to First Amendment defenses.

Hugo Zacchini, the circus-performer plaintiff, objected when his human cannonball act was broadcast on the nightly news. The Court was concerned about the potential damage to Zacchini's career if his audience was satisfied with seeing him shot out of a cannon on television, and therefore did not come to see the show live at the local fair.

The facts of Zacchini are unusual for a right of publicity case?involving the use of an entire performance, rather than simply the use of a person's name or likeness. As a result, courts have struggled to apply the case and its First Amendment analysis outside of such a context.

Even though courts recognize that the First Amendment still has a role to play in limiting right of publicity claims after Zacchini, they have come up with different, contradictory tests to resolve the conflict between free speech and the right of individuals to control when and how their identities are used by others. At least five different and irreconcilable tests have been developed in the lower courts.

The outcome of various cases depends on which of these tests apply; for example, the Eight Circuit's balancing approach led to a conclusion that online fantasy sports games that used players' names and statistics were allowed by the First Amendment, but the Third and Ninth Circuit's transformative use approach held that similar uses were not allowed in the context of video games. The California Supreme Court held under its broader transformative work analysis that the use of musicians' names and likenesses in a comic book was permitted by the First Amendment, but the Missouri Supreme Court held a similar use an unprotected violation of an athlete's right of publicity applying its predominant purpose test.

This uncertainty chills speech, and leaves vulnerable important commentary and depictions of real people. We cannot recount historical events without referring to the people who participated in them, whether athletes, dictators, or movie stars. Olivia de Havilland is Olivia de Havilland. Manuel Noriega is Manuel Noriega. And football legend Jim Brown is Jim Brown. They are not substitutable with generic, fictionalized alternatives, at least not if you are trying to tell true stories, or want to lend realism to fiction or video games.

Until greater clarity issues from the Supreme Court, writers, bloggers, visual artists, game designers, filmmakers, and others will continue to wonder when they can depict real people without risking liability. A glimmer of hope recently issued from a California Court of Appeal panel that tossed out Olivia de Havilland's right of publicity claim against the makers of Feud?a claim that a trial court had previously allowed because of the realistic nature of the portrayal of the actress.

In its reversal, the appellate court highlighted that: "Books, films, plays and television shows often portray real people. Some are famous and some are just ordinary folks. Whether a person portrayed in one of these expressive works is a world-renowned film star?a "living legend"?or a person no one knows, she or he does not own history."

De Havilland has sought review of this decision in the California Supreme Court. Hopefully, the California court will either deny review or grant review solely to affirm, and emphasize the unquestionable First Amendment protection for such depictions of real people. Otherwise, de Havilland and other public figures will be able to control and censor history. Such a prospect is nothing short of chilling.

[This is the fifth and final post in a five-part series about issues raised in my book, The Right of Publicity: Privacy Reimagined for a Public World (Harvard University Press 2018).]

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19 responses to “Real People, Real History, Real Problems

  1. The interesting bit with the circus performer is that situation seems like it could easily be limited by contract (via the ticket or other entrance criteria). And in that case there would not be 1A problems as in most of the others.

    1. Another thing is that it’s not really content produced by the TV station.

      That is to say, it’s much easier to claim that a perform owns depictions of his own work. It’s much harder to claim that a person owns a newspaper article written by someone else on the topic of his work.

  2. re: “Until greater clarity issues from the Supreme Court”

    This has been a fascinating series and I agree with the description of the many downsides to the current approach. I’m unsure why this is the Supreme Court’s job to fix, though. Why is it not the Legislature’s job to debate and define these rights more clearly and in a way that complies with the First Amendment boundaries?

    1. Because law professors think of courts as hammers and social issues as nails. You can’t blame them too much, it’s what they do day in and day out to earn their bread. Kinda like an interior decorator will mentally critique every house they go into. They need to be reminded from time to time that courts are more a sideshow to the main act.

  3. I would think you would discuss the Second Circuit’s opinion in Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989), which the Ninth Circuit adopted in Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894, 902 (9th Cir. 2002)

  4. They are not substitutable with generic, fictionalized alternatives, at least not if you are trying to tell true stories, or want to lend realism to fiction or video games.

    The entire OP leans heavily on that essentially false equivalence. Whatever you think about the notion of a right of publicity?and the question whether it should survive the death of the person publicized?trying to tell true stories, or writing news, or writing history, are not?and for 1A purposes need not be?equivalent to appropriating without payment someone else’s salable intellectual property for your own commercial use.

    1. equivalent to appropriating without payment someone else’s salable intellectual property for your own commercial use.

      Didn’t we just go over the fact that a right of publicity is not “intellectual property”? And guess what? Writing news is a commercial use, too.

      And it’s not a false equivalence. Just because a work is a work of fiction does not mean that real people are not essential to it. Sure, I can write a story about a little league team that has no larger context and does not depend on any such references. But take the show Mad Men. The setting of the 1960s required references to real life events and people and businesses; if they had just fictionalized those details, the show wouldn’t have worked. (Moreover, note that the scope of the right of publicity is far broader than the mere use of actual names — “likenesses” are included — so they could not have used thinly-veiled pseudonyms as a safe harbor.)

      1. But the question is, what does “right of publicity” actually protect?

        It’s origins are in a famous article by Louis Brandeis about privacy. But the most litigated cases are about the commercial value of celebrities to endorse products. No doubt there is tremendous value in that — I read somewhere that Shaquil O’Neill made 20 times as much money in endorsements as he did playing basketball. So, sure, if someone uses a celebrity to endorse their product without paying for it, there has been a misappropriation.

        The issue, though, is beyond that, whether any reference to a celebrity — in a game show question, in a book or movie, in a commercial — is taking away something from them. That I very much doubt.

        Why, for example, did the Govt have to pay Martin Luther King’s heirs $800,000 to put a statue honoring him? Or his heirs have to be paid royalties for someone who reruns his “I Have A Dream” speech.

        He was a historical figure who voluntarily injected himself into a major public debate. (In a positive way, to be sure.) That means the public gets to comment and react to that, whether critically or to honor him, or just recall an important moment in US history.

        Same goes for writing news.

        1. It’s one thing to pay to rerun his speech, which is his creation and belongs to his heirs. The fact that he gave it publicly does not (without more) make it public domain.

          It’s quite another to require payment to comment/react/honor him, including by reference to a portion of the speech, or write a book (or a 6th grade report) on MLK’s contribution.

          1. I understand it was his creation. But it is also a part of history. All of it — he wasn’t just blabbering away to hear himself talk, he meant to convey a message.

            In my mind, it was like the Gettysburg Address. An important moment for American history, in its entirety. The notion that one would have to pay Lincoln’s heirs to recite the Gettysburg Address sounds absurd to me.

        2. Wouldn’t you actually have to pay CBS (or whoever owns the copyright in the recording) to rerun the speech?

    2. I think it’s quite dubious to say that if an author writes a book about a person, that the intellectual property accrues to the subject of the work and not its creator.

  5. It has always puzzled me what the real difference is between a magazine running a cover story on Joe DiMaggio in order to sell magazines and a vendor associating Joe DiMaggio’s image with a coffee maker in order to sell coffee makers. Only the latter use has to be paid for, even without the implication that Joe DiMaggio endorses the product, whereas in both cases the vendor is using Joe DiMaggio’s star power to sell its product. In fact, many magazines have almost no text and nothing but images.

    Maybe the distinction is between depicting the glamor and associating the glamor with oneself. By depicting a celebrity, Life magazine did not imply that it shared in that celebrity’s glamor.

  6. This comment is not precisely on the legal point in Zacchini, but on other intersections between the law and the popular understanding of “justice” as translated through Hollywood. I am an obsessed fan of the 1950”s TV series PERRY MASON.

    In one episode Perry (actor Raymond Burr) lectures D.A. Hamilton Berger: “The primary duty of a lawyer engaged in public prosecution is not to convict, but to see that justice is done. . .” This, supposedly. is according to the “canon of legal ethics.” My, does Robert Mueller and his merry band of nastily partisan scalp collectors know anything about that canon?

    Another pearl of wisdom from the long running PM series: “The only difference between a technical objection and a constitutional objection is a matter of degree and that may exist only in the mind of the prosecutor.”

    1. This comment is not precisely on the legal point in Zacchini,

      Brother, that’s an understatement.

      1. Well, to tack closer to the wind, I was thinking of our local Macy’s which when it dumped a high-end line of clothing not long ago might have run a self-congratulatory ad: WE BOYCOT IVANKA, complete with photo of the fashionably dressed celebrity.

        Now when you think about it, would that not be a blatant use of the IVANKA label, product identity, etc. to ingratiate and promote Macy’s with a bunch of lefty Seattle consumers?

        On another level, I would propose it is the world’s most straight-up hate speech. It screeches that we don’t like someone because of one of her parents and we are proud of it.

  7. With regards to the De Havilland case – the Guglielmi case, to which Justice Anne Egerton refers frequently is only applicable to dead people. California Civil Code 3344.1 exempts docudramas and dramatic interpretations from right of publicity claims if the person is dead, but the statute from which it branches, California Civil Code 3344, does not exempt them from right of publicity claims if the person is alive. If they had used a deceased celebrity, they would be protected under the Guglielmi decision. Not so with a living person.

    1. If the FX was not willing to do accurate research using reliable sources (non-salacious biographical books with endnotes, newspapers, documentaries, interviews), perhaps Ms DeHavilland should have been omitted in the docudrama.

      Ryan Murphy should just apologize to Ms DeHavilland and edit out the offensive dialogue. Perhaps if he had spoken to her before hand he wouldnt have made the choices he did.

      1. Whether what you’re saying is true or not. it has nothing to do with the issue of the right of publicity,

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