Sunday, October 24, 2010

Musicians, Know Your Rights: Appropriation and the Right Of Publicity

How does violating by Appropriation differ from violating Right of Publicity?
Appropriation is the unauthorized use of someone's name or likeness for financial gain. Appropriation emerged as one of the first privacy torts developed in 19th Century courts partially because they “resembled property rights” (315).

The courts' early decisions had difficulty quantifying mental harm to award monetary damages. A New York court in a 4-3 decision ruled in Roberson v. Rochester Folding Box. Co. case, that Abigail Roberson's argument that the use of her image to advertise a New York baking flour company violated her privacy and caused “unwanted publicity” that caused “embarrassment and humiliation” was not sufficient to award monetary damages for the use of her likeness without her permission (315). 

The decision reflected courts' hesitancy to recognize damages for intangible harms. The New York legislature responded to public sentiments that sided with Roberson's plea for privacy, passing a law “prohibiting the commercial use of a person's name or likeness without permission.”

Courts are not likely to award damages for public figures claims of “mental anguish” but they may a “property-like right when the name or likeness of a celebrity or other public person is used for financial gain without authorization”(316). 

The courts have struck down sales of items using celebrities images for commercial gain because it infringes upon the celebrity's right of publicity and their ability to use their image to sell products. 

The Georgia Supreme Court blocked the “sale of plastic models of Rev. Martin Luther King Jr.” maintaining that his publicity rights could be inherited by his children.

The U.S. Court of Appeals has twice held that Elvis Presley's right of publicity could be exploited exclusively by his heirs” and remains their their property to control (316). 

That means Lisa Marie Presley is the only legal Elvis Presley impersonator!

Maybe Elvis also signed his publicity rights to the Republicans when he visited President Nixon?

So how did this happen?
Next week in "Musicians, Know Your Rights":
I'll address the issue of what happens 
when we try to use the musical and lyrical ideas created by performers 
instead of their likeness.

In addition to preventing the creation of products that would infringe upon a person's right to profit from their likeness, celebrities have the right to prevent use of their likeness in commercial advertisements promoting products without their consent. Johnny Carson succeeded in suing a portable toilet business advertisement that used Ed Macmahon's introduction to The Tonight Show: "Here's Johnny!" 

What I find most difficult to understand in this point of law is when a likeness can be considered an infringement upon their identity rather than as taking someone's actual copyrighted material. Bette Midler was awarded “$400,000 after Ford Motor Co. ran ads in which a singer imitated Midler's distinctive style and voice,” concluding that “to impersonate her voice is to pirate her identity”(316). 

In what way can Midler's style and voice be distinguished from someone else in her genre? What kind of intent to imitate needs to be shown to prove that a likeness was intentionally exploited? Can advertisers argue that their commercial work has merits as a parody?

Tom Waits, whose raspy voice was imitated in an advertisement for Frito-Lays corn chips, won a judgment of $2.5 million for misappropriation.

The Ninth Circuit held he had a property right “to control the use of his identity as embodied in his voice”(316). Misappropriation cases try to define an advertisement's wrongful use of someone's likeness to create the illusion of that person's endorsement or involvement in the commercial. Courts struggle define when use of a public figure is characterized by malice or ill will that can be proven. What if a commercial publication uses an public figure's image for a purpose that is satirical in their editorial content?

The difference between appropriation and the right to publicity seems to balance the difference between private and public life. Appropriation protects the rights of private citizens to be left alone by commercial interests while the right to publicity protects public persons rights to their identity and commercial interests. The individual interests of either merit asking for consent and respecting our people's desire to protect their private and public interests.

All citations from Samuel A. Terilli, Jr. and Sigman Splichal, "Privacy Rights in an Open and Changing Society," Communication and the Law 2010 Edition.