| Section VI |
On-Line Issues: C |
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C. Right-of-Publicity Cases
Address First Amendment Claims
The right of publicity protects a person’s name, voice, and likeness from being used without permission on products or in advertising. Right-of-publicity claims are often paired with Lanham Act claims, alleging that the defendant has made false or misleading statements implying the plaintiff’s endorsement of or affiliation with a product or service. Several cases in 2002 analyzed the interaction of the First Amendment and the right of publicity.
Solano v. Playgirl, Inc.
Jose Solano, Jr., an actor from the television show “Baywatch,” sued Playgirl after the magazine featured a photograph of the bare-chested actor on its cover, accompanied by the headline: “TV Guys. PRIMETIME’S SEXY YOUNG STARS EXPOSED.” Contrary to the implication on the magazine’s cover, however, Mr. Solano neither posed for photographs for Playgirl nor appeared nude in the magazine. Mr. Solano alleged, among other things, that Playgirl misappropriated his likeness in violation of California Civil Code Section 3344. A federal district court granted summary judgment to the defendant, finding that while Playgirl knowingly used Mr. Solano’s photograph, use of the photo was exempted from Section 3344(a) liability by the public affairs/public interest newsworthiness exceptions contained in Section 3344(d).
The U.S. Court of Appeals for the Ninth Circuit reversed the district court’s grant of summary judgment, holding that “even though the exceptions are to be broadly construed, the newsworthiness privileges do not apply where a defendant uses a plaintiff’s name and likeness in a knowingly false manner to increase sales of the publication. The First Amendment does not protect knowingly false speech.” Solano v. Playgirl, Inc., 292 F.3d 1078, 1089 (9th Cir. 2002).
In another California case, two well-known musician brothers brought an action against a publisher of comic books. The publisher had, without their consent, depicted the brothers in a comic book series as half-human, half-worm creatures who engaged in violent and otherwise immoral acts. Among other causes of action, the plaintiffs alleged misappropriation of their likenesses.
Originally the appellate court had affirmed the trial court’s decision to grant the defendant’s motion for summary judgment. However, the appellate court reconsidered its decision in light of the 2001 California Supreme Court decision, Comedy III Productions, Inc. v. Gary Saderup, Inc., 21 P.3d 797 (Cal. 2001), which involved an artist’s use of the Three Stooges’ likenesses. The California high court adopted a new balancing test in the context of the visual arts. The court noted the necessity of balancing the publicity right protecting the misappropriation of the economic value of a celebrity’s fame with the First Amendment right to comment on, parody, and make other expressive uses of a celebrity’s image.
But the determining factor, the court said, is the extent to which an artist’s work is “transformative.” In Comedy III, the court ruled that the image of the Three Stooges on T-shirts was not entitled to First Amendment protection because the image was not sufficiently transformative of a conventional celebrity portrait. (On Jan. 7, 2002, the U.S. Supreme Court announced that it would not review the Comedy III decision.)
The Winter court remanded the comic book case to allow the parties to develop the factual record in accord with the legal principles discussed in Comedy III. The Winter court emphasized the need to focus on whether or not the comic book’s use was transformative. Winter v. DC Comics, 99 Cal. App. 4th 458 (Cal. Ct. App. 2002).
A federal district court in New York considered the claims of a photographer and one of his subjects against a museum, alleging violation of right of privacy under Sections 50 and 51 of New York Civil Rights Law. To succeed on a right-of-privacy claim under New York law, a plaintiff must prove that the defendant, without consent, used the plaintiff’s name, portrait, picture, or voice “for advertising purposes or for the purposes of trade.”
The court addressed the question of whether the defendant used the plaintiff’s picture, incorporated into a collage, for “advertising” or “trade” purposes. The court noted that “the New York legislature sought to protect a person’s right to be free from unwarranted intrusions into his or her privacy, while at the same time protecting the quintessential American right to freedom of expression.” New York courts have held that, in the context of an individual’s right of privacy, art is entitled to First Amendment protection.
The court observed that the California courts in Comedy III had taken a “slightly different position” on the issue, determining that only sufficiently transformative art was entitled to First Amendment protection against right-of-publicity claims. The court held that regardless of whether one applies the New York standard (is it art?) or the California standard (is it transformative?), the collage should be shielded from the right-of-privacy claim by the First Amendment. Hoepker v. Kruger, 200 F. Supp. 2d 340 (S.D.N.Y. 2002).
The same district court considered a motion for summary judgment by the New York Stock Exchange in a case involving the name of the exchange’s CEO. The action alleged that the defendant used variations of the CEO’s name to post offensive messages on stock-related online bulletin boards, in violation of the Lanham Act and state law. The court denied the plaintiff’s motion for summary judgment, holding that issues of fact remained: (1) whether the CEO’s name (unregistered as a mark) had acquired secondary meaning sufficient to warrant protection under the Lanham Act; and (2) whether the postings constituted parody for First Amendment purposes. New York Stock Exchange, Inc. v. Gahary, 196 F. Supp. 2d 401 (S.D.N.Y. 2002).
--Kurt Wimmer
The author wishes to thank Allison Cohen of Covington & Burling for her assistance in the preparation of this chapter.
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