Real People, Real History, Real Problems

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).]