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Only Robin Wright Should Own Robin Wright

The 2013 movie, The Congress, envisions a world in which movie studios can own actors' names, voices, likenesses, and performances. Instead of betting on the next big thing, a major movie studio, Miramount Pictures, buys up and digitizes famous actors. The movie follows the film and television star Robin Wright, of The Princess Bride and House of Cards, as she is forced by financial hardship, aged out of coveted roles, to sign over her identity to the movie studio. The studio then requires her to go into exile, barring her from using her name, and showing herself in public. While the virtual Robin Wright makes new hit films, and even engages in press interviews about the personally-meaningful nature of her latest roles, the real Robin Wright must hide.

Technology already exists to make such reanimation of actors possible. So it is no surprise that actors and their union, the Screen Actors Guild (now SAG-AFTRA), worry about the danger such digital avatars pose to their livelihood. There are many good reasons to fight such wholesale replacement of actors, but one of the main legislative pushes by SAG-AFTRA across the country is exactly what makes possible the nightmarish scenario of The Congress. Miramount Pictures can only own Robin Wright if the law allows her identity to be transferable.

Paradoxically, SAG-AFTRA is traveling the country advocating for such a transferable right of publicity, making the right to one's own name, likeness, voice, and broader identity capable of being owned by others. Such laws jeopardize the freedom of SAG-AFTRA's own members, and place us all at risk. Making such rights transferable is dangerous, and makes it possible for each of us, whether actors or not, to lose ownership over our own identities.

Right now the epic battleground is in New York. The union wants the state to change its already existing right of publicity and privacy laws to make them transferable to others. This would make the right to control how names, likenesses and voices are used something that could be sold, signed away, or taken, potentially for the person's lifetime and even after death―as the proposed law would also extend the rights into the afterlife.

Such transferability is a feature of property rights generally, including forms of IP, like patents in inventions or copyrights in books and movies. But, the transferability of those forms of IP, whether voluntarily or involuntarily to creditors and ex-spouses, is not nearly as concerning as transferring one's own identity to someone else. Such an owner of your identity could block you from appearing publicly or from pursuing professional opportunities. They could also actively use images of you and your name on billboards, in television shows, and on cereal boxes without your approval.

Tellingly, the original calls in the 1950s and 1960s for such a transferable right in one's personality were led in part by studio lawyers looking for better ways to control and profit from actors. This was particularly pressing for them after the demise of the star system's long-term employment contracts in the 1940s, which courts had struck down as unconstitutional. A transferable right of publicity would enable producers to stop actors from making appearances the studios didn't like, and from doing endorsements or appearing on competing merchandise without studio approval.

It therefore is ironic that it is now SAG-AFTRA calling for such transferability. It will primarily be aspiring actors, voiceover artists, models, singers and other performers who sign away their rights, either unwittingly, or because such transfers of rights will be made a requirement to get an agent, or a recording deal, or a job.

Even if those up-and-coming actors wind up hitting it big and become famous, they may not be able to reclaim the rights to their own identities that they assigned early on in their careers, or they will have to pay a windfall to someone who is exploiting them to escape from under such assignments. Child-actors may be particularly at risk as parents may sign away the rights to their children's own names and likenesses, rights that the children cannot regain when they turn eighteen.

One of the driving forces behind SAG-AFTRA's perplexing advocacy for a freely transferable right is its effort to create postmortem rights for dead celebrities so that heirs and others (including corporations) can reap the rewards of income on the basis of these "delebs," long after they are gone. The economic value of such rights, however, is likely to be virtually zero for most of SAG-AFTRA's members. Elvis, Marilyn Monroe, Michael Jackson, and Marlon Brando have maintained their valuable images and likenesses after death, but the rank and file members of SAG are not going to generate big pay days for their heirs when they are gone.

Regardless of the merits of postmortem rights, there is no need to take rights away from the living to protect the heirs of the dead. Such truly eternal figures like Elvis have alternative avenues for their estates to protect rights in their names and likenesses, such as trademarks, without resorting to postmortem rights of publicity. Even if SAG-AFTRA is committed to extending the right of publicity beyond death, such laws can be drafted without risking everyone else's control over our own identities while we are alive. Efforts to stop the reanimation of actors can also be addressed by current laws, or by laws focused squarely on that issue, or even with collective bargaining efforts. But turning people into IP is a dangerous business, and not just in dystopian movies.

[This is the third 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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  • MightyMouse||

    Totally agree with your humanist position here, I think. Go Jenn!

  • Bored Lawyer||

    IP rights last too long already, in my opinion. Don't see the justification to extend the right of publicity past death.

  • DjDiverDan||

    Your arguments against the transferability of rights of publicity are reminiscent of the policy arguments made against an Englishman's right to transfer inherited real property before the English Patliament authorized such conveyances, and later, when the American government decided that American Indians couldn't be trusted to convey their own land. Others may view this attitude as "humanist", but I see it as arrogant, authoritarian, and elitist - why do you think that an entirely voluntary transaction, the transfer of a right of publicity, should be prohibited? Because you think that you know better than the prospective seller?

  • Krayt||

    Certain things like freedom and life are inalienable. You can contract in ways that affect them, but you cannot sell them. They remain yours. If you take it back, you are violating your contract with the implications of that, but there is no role for government to otherwise "take it back away from you".

    This should not be seen as patritian but rather as an acknowledgement of the power of the inalienability concept. To suggest you can sell it is fraud.

    And I submit who you are and what you think is part of it.


    In any case, if someone wants to give me a million dollars, I will hide away except for local restaurants and movies and so on.

  • swood1000||

    Certain things like freedom and life are inalienable. You can contract in ways that affect them, but you cannot sell them. They remain yours. If you take it back, you are violating your contract with the implications of that, but there is no role for government to otherwise "take it back away from you".

    OK, but why should the right to use your likeness in advertising be inalienable? Presumably you would place any limitations on it that you found necessary. There is no public policy objective that forbids you from licensing one use of your likeness. What public policy objective would be violated if you sold the right to use your likeness in any (or limited) advertising in perpetuity?

    To suggest you can sell it is fraud.

    A fraud on whom? On the public which is told that you endorse a product whereas in your heart of hearts you don't (and would this fraud disappear if you had to approve each endorsement individually)? It's not a fraud on the person you're selling your publicity right to. He can make a big profit from it.

  • gormadoc||

    Only Jennifer Rothman should own Jennifer Rothman's work.

    Allowing third parties to publish her work jeopardizes the goal of objectivity. Perhaps these parties will require agreement and favor before publishing. It won't be the established writers who suffer but the new and desperate writers.

    "Tellingly, the original calls in the 1950s and 1960s for such a transferable right in one's personality were led in part by studio lawyers looking for better ways to control and profit from actors."

    And gay people called for marriage rights because it benefited them. That's not a bad thing; part of the good in a democracy comes from people acting on their interests.

  • JonFrum||

    I know very little about the relevant technology, but I can guess that it's just a matter of time before filmmakers are able to generate perfectly lifelike 'actors' who resemble no one in particular, and become 'stars' like any other animated character. Which will solve your problem - there will be no 'actors' any more, and no possibility of transferring anything personal to anyone.

    The Future - Coming to You Soon!

  • OldCurmudgeon||

    I agree. SAG-AFTRA is a sophisticated group, so one should assume there is a good reason for their lobbying requests, even if the original author doesn't understand it.

    More broadly, acting is probably hard work. Who wouldn't prefer to sit back and collect royalty checks?

  • swood1000||

    Even if SAG-AFTRA is committed to extending the right of publicity beyond death, such laws can be drafted without risking everyone else's control over our own identities while we are alive.

    But doesn't your proposal precisely eliminate one's control over his own identity while he is alive? I don't know what kind of response you expected from a libertarian website but you appear to be arguing in favor of reducing my freedom for my own good. Your argument is that I shouldn't be permitted to sell my rights of publicity because I don't really know what I am doing, I will be taken advantage of, and I will regret it later.

    It's very similar to the argument that people should not be permitted to buy narcotics at will because they don't know what is good for them, except that in that case there is the argument that society will lose the productivity of addicts and they will become an expense for the rest of us as wards of the state. Those downsides for the rest of us don't exist in this situation.

    Special considerations might govern the marketing of the rights of children, and it might be against the public interest to enforce agreements that do not allow a person to appear in public. But what right does the state have, apart from the usual restrictions on the activities of those trying to commit fraud on others, or what interest does the state have, in hindering my marketing of my right of publicity?

  • tkamenick||

    Well put. "Stop people from deciding what to do with their lives because they might regret their own choices" is not a message that is likely to win over converts here. Missing from Ms. Rothman's discussion is the fact that the person selling their rights knew or should and could have known that the new owner could do all those things with them. They consented to all of that willingly.

  • vrkboston||

    The reason publicity rights should not be transferable like IP rights is that they are inherently not IP rights, they are personal dignitary rights to one's reputation. They are most like the moral rights recognized in Copyright Act sec. 106A (and some state laws) or more generally in European countries, which cannot be transferred. Moral rights can be inherited in some jurisdictions (not under the Federal law), but I believe only by the author's descendants, and this ought to be the rule for rights of publicity (if you concede that they should be inheritable, which personally I don't).

  • swood1000||

    The reason publicity rights should not be transferable like IP rights is that they are inherently not IP rights, they are personal dignitary rights to one's reputation. They are most like the moral rights recognized in Copyright Act sec. 106A (and some state laws) or more generally in European countries, which cannot be transferred.

    From the author's law review article on the subject:

    For those less familiar with the right of publicity, it has sometimes been described as a property right in one's personality. More precisely, it is a state law cause of action (either at common law or by statute) that provides damages and injunctive relief if a person or business uses another person's name, likeness, voice, or other indicia of identity without permission, usually for a commercial purpose (though sometimes for any purpose or advantage).

    At the beginning of the article she discloses that "Courts and scholars have routinely described the right of publicity as such a freely transferable property right." And I don't see the case for why it shouldn't be, in most cases.

  • swood1000||

    Perhaps the author is more concerned about the involuntary relinquishing of publicity rights, as in bankruptcy or divorce or by minors or by death, where the right is being taken from the person against his will or without considering his wishes. The state could have more of a role in those cases.

  • swood1000||

    Courts and legislatures also tend to put restrictions on the enforceability of provisions of "adhesion contracts" where one party (the business and drafter of the contract) has a stronger bargaining position and the other party (the consumer in need of goods and services) is in a weaker position that is often taken advantage of.

    What if an entire industry (for example, of musicians, actors or models) decides that all the contracts for people just starting out will include by default the long-term or perpetual assignment and license of their publicity rights. Nobody can get a job without signing the thing. Make a fuss and they'll make an example of you. I can see the argument for restrictions on this kind of thing (though perhaps it is better handled by their union), but how do you do it without denying people the opportunity to profit by marketing these rights?

  • James Pollock||

    So, you contract with a celebrity to be your spokesperson, leveraging their fame to your product's success. Then, after your product gains market position, suddenly a competitor hires away your celebrity. Too bad, you should have hired a more reliable celebrity endorser?

    You hire a poor actor to be the face of your advertising. You run enough ads to lift them out of obscurity. May you contract with that actor to avoid controversy by limiting the actor's professional and/or non-professional activities? Stand up for the anthem, don't be photographed on stage at a neoNazi rally, don't go to prison for pedophiliac crimes?

  • swood1000||

    You hire a poor actor to be the face of your advertising. You run enough ads to lift them out of obscurity. May you contract with that actor to avoid controversy by limiting the actor's professional and/or non-professional activities? Stand up for the anthem, don't be photographed on stage at a neoNazi rally, don't go to prison for pedophiliac crimes?

    This also points to some of the difficulties pertaining to the involuntary assignment of the right of publicity. Celebrity X owes money to his creditor so the court gives the creditor the right to market Celebrity X's endorsement of commercial products. Does Celebrity X have the right to demand that his likeness not be used in connection with pornographic products, since that would diminish his personal standing in the community? Would the same apply to any number of other products? Can the court order him not to engage in any activities that could reduce the value of the right? If Celebrity X thereafter voluntarily destroys his own reputation through scandal can the creditor sue him for the damage to the right of publicity? Can the court throw him into jail for contempt?

  • Gasman||

    "Child-actors may be particularly at risk as parents may sign away the rights to their children's own names and likenesses, rights that the children cannot regain when they turn eighteen."

    IANAL, and would be happy to hear a lawyer' take on this: The idea of parents creating binding contract for minors with far reaching effects, which are still binding when the minor reaches adulthood is bothersome. Parenting/guardianship is to be for the beneficence of the minor. The minor does quite literally have a get out of jail free pass on moving to adulthood(juvenile crimes being suppressed), so why should they not be relieved of grievous errors of others upon reaching majority.

  • swood1000||

    New York has a statute setting certain requirements which, if met, allow someone to enter into a contract with a child performer that the child may not disaffirm upon reaching adulthood. It has to be approved by a judge, certain amounts have to be set aside for the child, and the services rendered cannot extend beyond three years after the date of approval of the contract (although the judge can extend this to seven years if the minor is represented by qualified counsel experienced with entertainment industry law). California has a similar law but without the three-year limitation.

    The required procedures probably reduce the incidence of "grievous errors" committed by the parents, and of course allowing such contracts increases the amount that can be earned by child actors.

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