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Transform my Hart: Publicity Rights in Expressive Material
June 4, 2013 by Rick Sanders | Category: Blawg, Blog | Tags: First Amendment, free speech, right of publicity, Rogers test, trademark, transformative use, video games
Divided Third Circuit Reverses in EA v. Hart
Way back in September 2011, I blogged about Hart v. EA, mostly as an introduction to publicity rights. Hart was a former NCAA quarterback (and former teammate of Ray Rice at Rutgers) whose image (like many other former NCAA players’) is used in EA’s NCAA Football. The NCAA (whose reputation has not gotten any better since then) licenses collegiate athletes’ images and physical statistics to EA, but at the same time forbids collegiate athletes from profiting from their own images.* When you play NCAA Football, you can actually play a simulacrum of Hart—his image and certain physical and football statistics. If you’re a Rutgers alumnus, you might be pretty excited to play Rutgers’ powerful 2006 team (with Hart as quarterback and Rice as tailback) and relive the high-water-mark of Rutgers football.
* I’ll make no secret of my disgust at this state of affairs. Universities are able to profit mightily from young men to risk their health and long-term prospects to play a game they love. A university education is a very valuable thing, and most student-athletes get a great deal, but it’s on the backs of the … Read More»
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Come on Get Happy! Publicity Rights in the Online Context
But it’s Sad, Sad News for Momma Partridge
Even when I was a little kid, I didn’t like the Partridge Family. It came on late in the afternoon (in syndication, of course), after some Looney Tunes-type cartoons. It always seemed to start promisingly, with a little cartoon—featuring cute partridges hatching—and catchy song* for the opening credits. Then it went immediately downhill after that, mostly because it wasn’t a cartoon. Also, I was envious that the littlest kids got to live such a cool life that didn’t involve going to school. And I positively hated Danny.** Honestly, I preferred the Brady Bunch, if I had to endure a live-action sit-com, which is settling a low, low bar.
* Whoa, I just listened to the song again. I should rephrase that. It was catchy for a six-year-old kid in 1974, I guess.
** Yeah, I get that Susan Dey was pretty. But c’mon I was six. Also, at that point in her acting career (she was previously a model), she really couldn’t act.
I bring this all up because the actress who played Momma Partridge, Shirley Jones, recently lost an appeal on a claim that her likeness was … Read More»
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Hart v. EA: Are Publicity Rights in the Game?
Free Speech Sacks Publicity Rights (but Was it Offside?)
Update: The Third Circuit recently reversed this decision. I blog about that opinion here.
A few weekends ago I blogged about publicity rights in connection with a Vampire Weekend album cover. One of my main points was that publicity rights are a lot like copyright, except that it’s a right held by the subject of a work, rather than by the work’s author. Thus, when a work has a living (or in some states, dead) person as its subject, there can be two rights to worry about: copyright and publicity. Publicity is the right to control representations of yourself; copyright is the right to control representations (OK, “expressions”) you make.
Team Publicity Rights vs. Team Free Speech
Publicity rights make intuitive sense. If you’re a celebrity, even a local or minor one, people shouldn’t be able to use your likeness to make a buck. That’s a market for you to control. To this, we add a kind privacy or dignity sheen that arises (in my opinion) from the general feeling of discomfort we get when our likeness is shown to people outside our normal circle of family and acquaintances. Intuitively, … Read More»
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Have Yourself a Vampire Weekend!
Publicity Rights, Indemnification and the Coolest Album Cover in Recent Memory
In this post-album world, where we usually buy our music song by song, the album cover is something of a lost art. In 2009, Vampire Weekend infused some life into that art by building an entire semi-viral marketing campaign around a terrific image that turned out to be the cover art for their next album, Contra. That album cover was the subject of an interesting lawsuit filed last year in Los Angeles, which settled earlier this week.
Contra’s album cover is one of the best in recent memory. If you’re a fan of Vampire Weekend, you know what I’m talking about.* If you don’t, you can get a good look at it here at Rolling Stone’s site. It’s hard to put one’s finger on why it’s so good. It looks like a candid poloroid (and, perhaps, it is). The subject is pretty but gawky. Her eyes are wide, less with surprise than with a kind of intensity, her mouth slightly open as if she were about to say something. The lighting implies that it was taken, with a flash, in a darkened room. It’s … Read More»
