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 misappropriated by an online catalog of photographs that displayed “red-carpet” photographs of her. Like print catalogs, the online catalog was in the business of selling copyright licenses for the photographs on behalf of the photographers (who retained the copyright*), taking a cut of the license fee.
* Which is smart, by the way.
Jones conceded that it would be OK for a print catalog to display these photographs for this purpose, but she didn’t like the online catalog’s search feature. Specifically, she objected to how her name could be used to find photographs of her. To her way of thinking, her name was providing a promotional feature for the online catalog (and its photographer clients, incidentally), that she was benefiting from.
There was no dispute, then, that, by going out onto a red carpet surrounded by photographers, a celebrity was consenting to the later use of her likeness in the photographs. Under even California law, which is very friendly to celebrities, you need to prove a lack of consent to prevail on a claim for misappropriation of likeness (a.k.a. violation of the right of publicity). Such consent didn’t need to be in writing. It could be implied from surrounding circumstances.
Thus, the relevant questions were:
1. Does it make any difference if the catalog is online and searchable?
2. People want to buy “red-carpet” photographs of Shirley Jones?
OK, I shouldn’t make fun of Shirley Jones. It’s just, when I think of her, I think of the Partridge Family and Beyond the Poseidon Adventure. In reality, she’s had a long, even distinguished, acting career. She even won an Academy Award for best supporting actress in 1960 for playing a vengeful prostitute in Elmer Gantry*, a movie I feel certain I will never see.
* Shirley Jones as a vengeful prostitute? That’s like Benji as a rabid, demonic St. Bernard. Maybe I should watch the movie after all. Or maybe see the opera.
Anyway, the district court held, and the Ninth Circuit Court of Appeals affirmed, that the search-able, online nature of the catalog made no difference at all. On the element of consent, the only question is whether she consented to the photograph.* Once such consent is obtained, it includes, at a minimum, uses of the likeness necessary to promote and sell the photographer.
The Mystery of Consent
The courts neatly sidestepped a more interesting issue, which goes to the nature of this sort of implied consent. Can implied consent be assigned? What if the photographers had assigned their copyright to a third party? Does the third party also receive the benefit of the consent? In this case, the court viewed the online catalog as an agent acting on behalf of the photographers. In fact, the online catalog made it clear that it was only sub-licensing copyright, not any other rights, like publicity rights.*
* So, um, buyer—er, sub-licensee—beware. Yikes.
The answer to this question, it seems to me, turns on whether consent is by nature contractual, or something else. If it’s contractual, you’re left with a really tough question of guessing the scope of the consent from the surrounding circumstances—as they existed when the photograph was taken. Since the celebrity’s (and photographer’s) testimony would be self-serving, is there really an objective way to determine that? If someone had well-known political views, for example, could one reasonably determine that she wouldn’t have consented for her image to be used on a website that clearly opposed her views? And if it’s a contract, what are the implicit terms? I give you the right to use my likeness, in exchange for your incidental promotion of my career?
Or does implied consent follow its own set of rules in the context of the right of publicity? It would seem that the First Amendment right of free speech might have something to say about that. Celebrities are usually (but not always) regarded as newsworthy. Is it the case that once a likeness is “out there,” everyone has consent to use the likeness (if not necessarily the photograph)? But if the consent isn’t a contract, then what do you make of explicit grants of consent? It would be strange if explicit grants were governed by contract law and other grants governed by some sui generis law.
Finally, would Jones have been better off making a trademark claim? If you think about it, her main complaint—the use of her name to promote the sale of sub-licenses, which she didn’t benefit from—sounds like a trademark claim. SHIRLEY JONES is associated with, I don’t know, acting and “celebrity” services, and the online catalog was trading on her goodwill when it used SHIRLEY JONES to help locate pictures of Shirley Jones.
Only, the catalog wasn’t really trading on her goodwill. Unless there was an elaborate tagging system, if you wanted to find photographs of Shirley Jones, you had to search for “Shirley Jones.” Imagine if the online catalog sold collectable signs, and you were interested in a vintage COCA-COLA sign? Surely it’s a fair use (nominative or otherwise) to search for “Coca-Cola” to locate vintage signs.*
* I suppose Jones has a somewhat stronger argument here because the photographs arguably trade in the same “services” as what Jones provides—some kind of vague “celebrity-ness”—whereas the vintage sign isn’t likely to be used to sell anything (and if it did, it would be Coca-Cola products). And Jones did sell photographs of herself (buy why?). But in the end, both uses the uses of SHIRLEY JONES and COCA-COLA are fair uses.
Is there any other recourse for a celebrity in this situation? Or should Jones have just decided that any publicity was good publicity?
The Mess Left Behind by Publicity Rights
To me, the main takeaway is how publicity rights can mess up even a straightforward application of copyright licensing.* As we’ve discussed here and here, publicity rights are a creature of state law, so there are potentially 50 or more varieties of publicity rights. And there’s not a lot of legal guidance about how the First Amendment right of free speech limits the right of publicity. Heck, as the analysis above shows, we’re not even sure how far implied consent can go. As more celebrities start viewing their publicity rights as a way to supplement their incomes, expect more clashes like this.
* Well, that, and the fact that a lot of people feel threatened by the Interet. I think most people would see an online catalog as just a more functional paper catalog, but Jones clearly saw it as a different, and threatening, beast.
Thanks for reading!