Case may provide guidance on publicity rights

LEGAL ENTERTAINMENT

Everyday celebrities endure the lights and snaps of the paparazzi. Their pictures are taken during performances, at Hollywood parties or just grabbing a cup of coffee. Not only are the paparazzi following famous people around, individual fans and admirers will be on the look out and take the opportunities to capture personal footage. Fans engage in all forms of flattery, not just photography. People will copy a celebrity look, song or voice for various reasons.

The overwhelming "fandemonium" within all areas of the entertainment industry raises the value of the name, image and likeness of celebrities. These assets are protected by state law only. Common law protects a person's identity from being used commercially without consent. California strengthened these laws by enacting legislation to further protect the celebrities of its own entertainment hub.

California law prohibits someone from knowingly using a person's name, likeness, voice or image, on or in connection with goods or services, for the purpose of advertising or selling of the goods or services, without the person's prior consent. In some states, including California, the protection lasts after death for a certain amount of years.

The mere fact that someone's likeness is used does not automatically amount to a violation. The court looks closely at the advertising aspect asking whether there is a direct connection between the use and the commercial purpose. Furthermore, the law cuts out exceptions for uses in connection with news, public interest, sports broadcast or any political campaign.

The policy behind these exceptions relate to the protections from the First Amendment. With the interaction of multiple areas of law when handling issues in the entertainment industry, falling within a publicity right exception isn't as black and white as it may seem. Sometimes federal laws, such as copyright, come into play causing a confusion within the analysis. This generally occurs when producers use a person's identity within an original work of creative expression. In such case, federal law could preempt the state publicity laws.

There are instances of blatant violations of publicity laws. This was the case back in June when Kendall and Kylie Jenner used images of infamous musicians such as Notorious B.I.G, the Doors, Pink Floyd and Tupac on T-shirts. They superimposed images of themselves over the musician and sold each shirt for $125. A few of the musicians' estates sent cease and desist letters for the use of the artists' image, while a photographer of Tupac has filed a lawsuit for copyright infringement for use of a specific photo he claims ownership over. The Jenners argue that the copyright claims are baseless as they purchased a license to the photo. As for the cease-and-desist letters, the Jenners removed the shirts and apologized to the estates. Just looking at the facts on the surface, there is nothing that would protect the Jenners from liability. Exploiting a musician's image in connection with commercial sales and advertising without permission is a violation of publicity rights.

A stickier issue that recently popped up relates to the use of a celebrity's image and likeness in a type visual work that accurately portrays them by either focusing on a special event or the celebrity's life in general. The lives of entertainment icons are subjects of public interest by being a part of the overall entertainment history. Creating movies about the lives of Tupac, Muhammad Ali or even Mark Zuckerberg tell the public a story that has changed the culture of our country.

So, what about a docudrama? What about a creative TV show that accurately depicts a well-known actress? That is the issue for Olivia de Havilland, who acted in "Gone with the Wind." De Havilland filed a lawsuit in July against FX for the TV show "Feud," which tells the story of the rivalry of Betty Davis and Joan Crawford. The show portrays actual celebrities from the 1960s. The lawsuit asserts the violation of her right of publicity by using her likeness without prior consent, among other causes of action. FX filed an anti-SLAPP motion asserting that the work was protected by the First Amendment and was transformative. The judge decided the motion in favor of the actress in September. Although this is only on motion, the current opinion of the judge already has many worried.

FX argued that the use of de Havilland's likeness is a form of free speech, and their intention was to depict the actress as realistic and accurately as possible. The judge did not agree. He explained that the First Amendment did not protect works that use a celebrity's likeness for the economic value of it rather than the actual story. Ultimately, the judge found that the use of her likeness was not accurate enough demonstrating that the use was merely for the economic value brought from the celebrity likeness rather than the story portrayed. FX alleged that the work was transformative as original creative expression and should be protected as such (a test borrowed from the fair use analysis). The court found that the work was not transformative enough because FX admitted that the intention was to depict the actress as real as possible, even if the conversations within the show were imagined for the sake of creativity. The judge articulated that by using an accurate depiction of de Havilland, the use was for overall commercial gain. So, all in all, the work was not accurate enough to be protected under the First Amendment and, apparently, the use was too accurate to be transformative.

This brings up the question: What about autobiographies, documentaries, biopics, or other works that depict accurate speech about a celebrity of public interest while receiving an economic benefit? The opinion itself is contradictory and does not provide clear guidance on what is protected and what is not. If the superior court decides in favor of the actress, there will undoubtedly be an appeal. If on appeal the decision is reversed, the Supreme Court may need to get involved. Otherwise the creation of original works of expression based on celebrities or other people of public interest will become quite difficult, especially since California protects the right of publicity for 70 years after death. Keep close watch on this case, a motion to expedite trial due to the age of de Havilland was granted in July, so the trial is scheduled for Nov. 27.