Rights of Publicity Often Collide with First Amendment

In law school we all learned about the “four privacy rights” in first year torts class: (1) intrusion into plaintiff’s private affairs; (2) public disclosure of embarrassing private facts; (3) publicity that places plaintiff in a false light; and (4) appropriation of the plaintiff’s name or likeness.

The reason that these are called rights of “privacy” is that they all serve the value of being left alone in a society where technology multiplies the risk of intrusion into our solitude and dignity.

The fourth right, appropriation of name or likeness, alone among the four privacy rights has taken on a twin character.  In the hands of the famous, the right to control use of name or likeness is a right to profit from commercial appropriation of a celebrity’s identity.  The U.S. and California Supreme Courts have referred to this tort as a “right of publicity,” a form of intellectual property.

Rights of publicity usually collide with First Amendment values.  Courts have struggled to balance the two rights, sometimes importing principles from defamation or copyright law.  Generally, rights of publicity prevail over purely commercial speech and yield to non-news expressive speech.

When a person’s identity is appropriated in purely commercial speech, courts have consistently held that rights of publicity prevail.  Thus, when Frito-Lay hired a singer to imitate Tom Waits growling a jingle for Doritos in his trademark gravelly voice, it was held liable for $375,000 in compensatory damages and $2 million in punitive damages for misappropriating his identity.

Rights of publicity also yield to use in news, sports or campaigns and documentary use.  Thus, Joe Montana lost his challenge to the San Jose Mercury-News use of his image in a news section on the 49er’s success, an institute with Rosa Parks’ rights lost its challenge to Target’s use of her image to publicize a section of books on her life for the anniversary of her famous refusal to yield her seat on a segregated bus.  The exception has been Clint Eastwood’s case against the National Enquirer based on an article that was entirely false, and thus not “news.”  I think tabloids today avoid the Eastwood treatment by injecting elements of “truthiness” into their trash news.

When the challenged speech has expressive or fictional elements, however, rights of publicity tend to lose.

Some courts have analyzed these cases as a simple choice of competing values.  Thus, Sergeant Sarver lost his claim that the main character in “The Hurt Locker” was based on his exploits defusing bombs in Iraq because the First Amendment protects fictional works.

Some courts have imported defamation principles into the analysis.  Thus, when Dustin Hoffman sued over an article in Los Angeles magazine featuring graphically altered movie stills, one of which was Hoffman as “Tootsie” altered to show him wearing a Richard Tyler gown and Ralph Lauren shoes.  Hoffman lost when the appellate court said he had to show Los Angeles magazine acted with “actual malice,” a defamation concept meaning knowledge or reckless disregard of falsity.  I don’t know how the article and photo could have been construed to be either true or false, and thus I think the Hoffman case was poorly decided, but it illustrates the courts’ tendencies to side with expressive speech.

The California Supreme Court set what appears to be the prevailing trend in a case involving an entity with the Three Stooges rights against an artist who sold his charcoal sketch of the Stooges on lithographs and T-Shirts.  The court borrowed principles of copyright fair use, where works can be copied for non-commercial uses such as teaching.  The court created a test that asks whether the challenged work has “transformative elements” and whether or not the value of the work derives “primarily from the celebrity’s fame.”  The court found the charcoal drawings in question were too literal and the value of the articles derived too much from the Stooge’s fame.

I think this case puts judges and juries in the questionable role of art critics, but this seems to be the prevailing trend.  Thus, a comic book with characters clearly modeled after Edgar and Johnny Winters was transformative, but use of pro football players’ names and likeness in “Madden NFL” was not transformative and merely commercial exploitation of their fame.

I think courts’ attempts to import defamation and copyright law into this field have skewed what should be a simple analysis.  To me, rights of publicity prevail over purely commercial speech and lies and lose to news, documentary and creativity.  My test is easier and also predicts the outcome of most cases.