Where does the right to publicity lie? (hard to discern)

by on June 14, 2013 at 2:16 pm in Law, Sports, Television, The Arts, Uncategorized | Permalink

The Screen Actors Guild and several players’ unions have filed briefs supporting Mr. Hart, saying that athletes, actors and other celebrities must have the right to control the use of their identities and to harvest the financial fruits of their fame. The movie industry, book publishers and news organizations, including The New York Times, have lined up on the other side, saying that allowing celebrities to control speech about them runs afoul of the First Amendment.

The dueling briefs cited a grab bag of cases that are hard to wrestle into a coherent legal framework.

The courts have, on the one hand, rejected right-of-publicity suits arising from a painting of Tiger Woods, a comic book evoking the musicians Johnny and Edgar Winter, parody baseball trading cards and a fantasy baseball game that used the names, statistics and biographies of Major League players. But courts have allowed suits over the broadcast of a human cannonball’s entire act, a comic book using a hockey player’s nickname, an ad evoking Vanna White’s skill at turning letters on “The Wheel of Fortune” and a reference to Rosa Parks in a song.

If there is a legal principle that unites these rulings, it is hard to discern. What is clear, though, according to an expansive 2011 Supreme Court decision, is that video games deserve full First Amendment protection.

Here is more, by Adam Liptak.  Here is a Gloria Franke paper (pdf) on some of the underlying legal (and economic) issues.

derek June 14, 2013 at 3:30 pm

I fully support all efforts made to limit our access to famous people. I think the court should set the price. Very high. There should be a display in grocery stores where you have to pay to walk by their photos.

I see no downsides to me personally.

Andrew' June 14, 2013 at 4:02 pm

It does seem odd that the government would protect seemingly economic profits of people already doing very well for themselves. I’d be interested in something that says you do own your likeness, but the public isn’t necessarily on the hook to protect it. Non-libertarians will probably tend to think that is meaningless- despite that being how the courts seem to work in practice a lot of the time anyways.

j r June 14, 2013 at 5:08 pm

I think it would be odd if the government didn’t spend most of its time and effort protecting the economic profits of people already doing well for themselves.

Andrew' June 15, 2013 at 6:15 am

Is your comment descriptive or normative? I agree that it is what we should expect from a public choice perspective, but it doesn’t seem like what most people would want. George Clooney won the publicity tournament, do we really need the government to help him stay at the top of the heap?

Bill June 14, 2013 at 4:34 pm

Parody is always permitted.

Visit my website: Marginal Evolution.

For those who change their opinions slowly based on empirical evidence, not theory.

By the way, if you google it you will find that the domain name is available for sale, but not by me.

Bill June 14, 2013 at 4:39 pm

Ooh. Looks like there is a blog by that name too.

Which came first: evolution or revolution? Is one a parody of the other? Is there confusion justifying a lawsuit? Will this be like the actor v. New York Times line up.

By the way, I have nothing to do with either.

KevinH June 14, 2013 at 5:09 pm

It seems to me not a terribly hard hair to split. The question is if you are relaying past actions, or projecting potential actions. Discussing a living individuals sorted sexual history is fair game, but placing them into a make-believe sex scene without their consent is a no-no. In that way a named simulation of an individual person would clearly need their permission. I think that would come down more or less on the same lines as the courts, with the notable exception of performance art, which I think is more of a copyright issue than a publicity issue.

Enrique June 15, 2013 at 1:29 am

The student paper by Gloria Franke on this topic is 48 pages, yet I don’t see what value it adds above and beyond this short post … Why not just toss a coin to decide these right of publicity cases?

Silas Barta June 15, 2013 at 2:58 am

Did anyone else’s head explode at the notion of Vanna White’s “skill” at turning letters?

Andrew' June 15, 2013 at 5:07 am

I know, right? She hasn’t lost a step.

Hermes Handbags June 15, 2013 at 9:50 am

Spot on with this write-up, I really assume this website wants way more consideration. I?l in all probability be once more to read rather more, thanks for that info.

YSL Pumps June 15, 2013 at 9:53 am

you’ve got a fantastic weblog here! would you prefer to make some invite posts on my weblog?

Steven Kopits June 16, 2013 at 12:37 pm

Keep in mind that upstream spend on oil and gas exploration and production will have increased from around $250 bn in 2005 to an estimated $678 bn in 2013 (Barclays Capital survey). Now, this investment will produce about as much incremental oil and gas as 1/6th of the investment produced in, say, 2002.

So there is about $450 bn of deadweight loss in oil and gas compared to a decade ago, and this is surely cannibalizing investment in other sectors. So when thinking about dynamism, it might be worthwhile to think where those social resources are being spent.

Comments on this entry are closed.

Previous post:

Next post: