Calling Alexander Graham Bell

Ayun Halliday investigates the uses of inventor Alexander Graham Bell as representative of all kinds of TV spokesperson, from the obvious (electronic equipment) to the somewhat less so (chewing gum--well, maybe it's linked to speech, which goes into the phone?) to the obscure (Legos--Bell as a child making a phone out of the product--I'm really in the weeds now). Along the way, she points out that intellectual property law can be a concern if one uses images of dead figures in one's advertising. Public figures may also have post-mortem rights of publicity, depending on the jurisdiction.

For Open Culture. 

The Rights of Privacy and Publicity

Samantha Barbas, SUNY Buffalo School of Law, has published Laws of Image: Privacy and Publicity in America (Stanford University Press, 2015). Here is a description of the contents from the publisher's website.

Americans have long been obsessed with their images—their looks, public personas, and the impressions they make. This preoccupation has left its mark on the law. The twentieth century saw the creation of laws that protect your right to control your public image, to defend your image, and to feel good about your image and public presentation of self. These include the legal actions against invasion of privacy, libel, and intentional infliction of emotional distress. With these laws came the phenomenon of "personal image litigation"—individuals suing to vindicate their image rights. Laws of Image tells the story of how Americans came to use the law to protect and manage their images, feelings, and reputations. In this social, cultural, and legal history, Samantha Barbas ties the development of personal image law to the self-consciousness and image-consciousness that has become endemic in our media-saturated culture of celebrity and consumerism, where people see their identities as intertwined with their public images. The laws of image are the expression of a people who have become so publicity-conscious and self-focused that they believe they have a right to control their images—to manage and spin them like actors, politicians, and rock stars.

 

2 Broke Girls and the Model Release

On the February 23, 2015 episode of 2 Broke Girls ("2 Broke Girls and the Great Unwashed"), Caroline and Max wait on a customer (Valerie Harper), who turns out to be a famous photographer. Without their knowledge, she takes their photos, as well as those of other employees at the diner, and displays them in an exhibit in a Soho gallery. The photos sell briskly, except for Caroline's. Caroline objects, although it seems that she's offended more that her photo isn't selling, and than that because the photographer didn't ask her consent, and the photographer offers her a print of the photo to mollify her. Caroline does accept the photo, yet--still no model release. Notice that the photographer doesn't get a model release for any of the photos of the employees at Han's diner. Does she need them? We don't know if she obtained a property release from Han.

The First Amendment protects a photographer's right to take photos in public spaces (nice roundup of photographers' rights here from the ACLU), and to sell artistic photographs, although what may complicate matters is that this photographer took her photographs in a diner rather than in on the street or in a public park.  However, socialite Caroline obviously has a right of publicity. It's worth something here; she has been cultivating her persona since she was a teen, and she was in the spotlight during the high profile trial of her father Martin Channing, who is now in prison as a result of his conviction for running a Ponzi scheme. To the extent that the photographer's use of the photos cross the line from fine art to advertisement, how much might they infringe on Caroline's right of publicity? We don't actually that in the episode, but we could spin some hypos. Suppose the photographer creates business cards with her photo of Caroline on them? She might not; she admits that the photo isn't particularly successful because people "don't believe" Caroline as a server in a diner. The role doesn't fit Caroline's persona.

What about the photos of Max and the other employees? What are their rights of publicity worth, if anything? Suppose the photographer decides to use one of their photos as future advertising?  Suppose she sells a coffee table book of her work, which includes the photos and those particular pages become part of the advertising campaign? Should a prudent publisher demand that she get model releases even if the law doesn't require them right now?

Both a prudent photographer and a prudent publisher should seek model releases, even if, as in this case, the photographer doesn't seem to be using the photos for commercial purposes. Entertainment attorney Gordon Firemark gives a short but cogent explanation of the law in this area here.

Discussion of the need for model releases in fine art photography here. Short overview of how courts balance the First Amendment and the right of publicity here. Text of N.Y. Code sec. 50 (right of privacy) here.

Fun for discussion with an entertainment law or IP class.

Misappropriation in a Hemingway Novella?

Enrique Guerra-Pujol, University of Central Florida, College of Business Administration, and Pontifical Catholic University of Puerto Rico has published Misappropriation and The Old Man and the Sea. Here is the abstract.

We consider whether the great writer Ernest Hemingway may have committed the tort of misappropriation when he published his masterpiece “The Old Man and the Sea.” In summary, Hemingway either borrowed or stole (depending on one’s perspective) the following elements of his timeless novella: (i) the actual story itself, (ii) the “back-story” and other biographical details of the main character of the story, Santiago, as well as (iii) Santiago’s ascetic persona and physical characteristics. Although we concede that Hemingway combined these ingredients into a new and original artistic work, the question we are considering in this paper is whether Hemingway’s creative combination of such elements is enough to negate a claim of misappropriation under current U.S. or Cuban law. (We must consider Cuban law in addition to U.S. law since Hemingway lived in Havana, Cuba when he wrote and published “The Old Man and the Sea.”) That is, if Hemingway were writing “The Old Man the Sea” today, could he be liable under the common law doctrine of misappropriation or even under Cuban law?

Download the paper from SSRN at the link.

The Right of Publicity In Australia and Singapore

David Tan, National University of Singapore, has published The Fame Monster Reloaded: The Contemporary Celebrity, Cultural Studies and Passing Off at the Singapore Journal of Legal Studies 151 (July 2010). Here is the abstract.

The common law jurisdictions of Australia and Singapore often adopt a conservative approach to recognising newproperty rights, particularly with respect to the human persona, but courts frequently take their cue from developments in the United Kingdom. This article revisits the landmark cases in these jurisdictions which, in declaring that a property right in the goodwill of a celebrity may be protected against unlicensed commercial appropriation, use language evocative of the right of publicity. It examines howthe courts have expanded the passing off action to prevent the unauthorised commercial use of the images of well-known personalities. Finally, by adopting a cultural studies analysis that investigates the semiotic nature of the celebrity sign and its influence on contemporary consumption, this article offers a different perspective to the debate on the protection of image rights.

The full text is not available from SSRN.

The Right of Publicity and "Crime of the Century" Cases

Edward Larson, Pepperdine University School of Law, has published "Murder Will Out: Rethinking the Right of Publicity Through One Classic Case," in volume 26 Rutgers Law Review (2009). Here is the abstract.

In this forthcoming article, the author uses the protracted legal battles over the right of publicity stemming from the lasting celebrity created by the so-called “crime of the century” to propose a legal test for applying the right of publicity generally. These legal battles were fought during the 1960s over the right of celebrity slayer Nathan Leopold to control the use of his name and personality in a novel, movie, and stage play. After conflicting lower court decisions that had a chilling effect on writers and publishers, the case was eventually decided against Leopold. The author agrees with this result but argues that, because there has been a tendency to decide such disputes on a case-by-case basis, similar uncertainty continues to arise in analogous cases. He proposes a clear test, easily understood by both creators and users of celebrity personality, which would balance the interests of the parties and bring added predictability to this area of the law.

Download the article from SSRN at the link.