[Ed. Note: Law Law Land’s non-calendar-compliant Oscar week continues, as Brian Berman returns to explore the fates of all of those little Oscar statuettes that were handed out during last night’s show.]
Los Angeles was lively over the weekend as Hollywood’s finest took the stage at the 83rd Academy Awards. Hollywood’s best, brightest, and most recognizable are always out in force for Oscar weekend. But perhaps no figure shines brighter than Oscar himself (although it’s not actually fair fight, as he is gold-plated).
Standing tall at 13 ½ inches and weighing in at 8 ½ pounds (that’s just over 0.6 stones for our British friends), Oscar’s gold-plated metal figure is recognized the world over. As with any Hollywood star, “Oscar” is just a stage name. Oscar’s real name is the “Academy Award of Merit.” Also, Oscar is technically a “statuette,” not a statue. And for last night’s winners, he might also be their new best friend.
But what if a winner wanted to get rid of his or her Oscar? Maybe he or she needs to raise a little extra money to pay those Ferrari lease payments and Dom Perignon bar tabs. Maybe he or she wants to give a friend or family member a token of his or her love. Or maybe he or she is just weirded out by a naked knight staring at him or her.
It is hard to imagine anyone getting rid of an Oscar, but, for argument’s sake, let’s say that someone wanted to. Could he or she do that?
Much to the chagrin of the booze-swilling, debt-amassing class of Academy Award winners, the Academy of Motion Picture Arts and Sciences is very protective of little Oscar. It is constantly fending off those that would seek to improperly exploit and misuse the iconic symbol of Hollywood accomplishment. After all, part of what makes an Oscar so special is that very few people have them. One of the ways the Academy protects Oscar is through copyright law.
Like a statue that sits in a museum rather than on an actor’s mantle, Oscar is a copyrighted work. Because the Academy holds the copyright for Oscar, it can, to an extent, prevent others from a variety of acts, such as using photographs of Oscar and manufacturing Oscar statuettes.
But a copyright (the protection afforded to expression) is separate from a copy (the physical embodiment of the expression). For example, while J.K. Rowling owns the copyright to story, characters and text of Harry Potter and the Deathly Hallows, she does not own the physical copy of the book that you have on your nightstand. This is the result of the “first sale doctrine,” a concept borrowed from patent law. While you, as a purchaser of Deathly Hallows, don’t have the right to recopy or repurpose the story, you are free to sell or give your legally-purchased copy away. For the same reason, once the Academy gives an award recipient an Oscar statuette, the first sale doctrine would bar it from later trying to control whether the recipient gives or sells that statuette to another person.
In the 1950s, the Academy began trying to combat this problem by making recipients sign an agreement upon receiving their little gold buddy. The agreement allegedly signed isn’t public, but presumably it contains restrictions similar to those posted on the Academy’s website under “Regulations.” Section 10 of the Regulations provides:
“Academy Award winners have no rights whatsoever in the Academy copyright or goodwill in the Oscar statuette or in its trademark and service mark registrations. Award winners must comply with these rules and regulations. Award winners shall not sell or otherwise dispose of the Oscar statuette, nor permit it to be sold or disposed of by operation of law, without first offering to sell it to the Academy for the sum of $1.00. This provision shall apply also to the heirs and assigns of Academy Award winners who may acquire a statuette by gift or bequest.”
There are a lot of ways you can “dispose of” your property. Lawyers say that you can sell, transfer, assign, encumber, pledge, hypothecate and anticipate your property (I sound smart, don’t I?). What this really means is that you can sell property, lose property, trade property, have property stolen from you, have property taken from you with the court’s blessing, give your property away (either by a lifetime gift or a testamentary gift), or even destroy property.
The Academy is trying to cover all of its bases saying that an award winner “shall not sell or otherwise dispose” of Oscar, nor “permit it to be sold or disposed of by operation of law” without first offering to sell Oscar back to the Academy for $1.00. This is what is known as a “right of first refusal,” and the Academy would have it apply in a broad set of circumstances. If you plan on getting rid of Oscar, by whatever means, the Academy argues that it has the right to buy it from you first for a handsome sum of $1.00.
What’s more, this restriction also purports to apply to your “heirs and assigns,” meaning anyone you transfer Oscar to by whatever means. Ever the realists, the Academy recognizes that you will die and your Oscar(s) will have to pass to someone, whether by intestate succession, will or a gift in trust. And because your ingrate kids might not have proper respect for the sanctity of your golden friend, the Academy seemingly preserves the right to preempt their inheritance too.
Now, I haven’t seen the actual agreement, if any, that recipients sign, but there are definitely some problems with this Regulation. In practice, the Academy is unlikely to try to exercise its first refusal rights against bereaved children acquiring their Oscars by reason of a parent’s death. However, the notion inherent in that “heirs and assigns” language — that the child would then be bound to offer Oscar to the Academy if the child sought to sell or dispose of Oscar — is questionable at best. It is unlikely that the agreement signed by the recipient would be operative to place restrictions on the child who was never part of the agreement.
But let’s just focus on an actual recipient who is so distraught by Oscar staring him in the face, constantly taunting him for peaking professionally so early and never living up to his true potential, that he impulsively sells his Oscar in a fit of rage. The Academy, having missed out on its right of first refusal, may try to recover the actual statuette itself. But if the purchaser is a “bona fide purchaser for value” — meaning the purchaser had clean hands in the transaction, and was not aware of the Academy’s first refusal right — it is almost certain that the Academy would not be able to force the purchaser to cough up Oscar.
What, then, is the Academy’s remedy? The Academy can try to exact damages from the evil Oscar-selling recipient, but in order to do so, the Academy must show that it was harmed in some way by the sale. Does some guy who spent his life savings on somebody else’s Oscar displaying his proud bounty on the mantel of his home harm the Academy? Maybe…but it would be tough to prove. What’s more, the Academy’s own Regulation may be a shot in the foot, as the court may interpret the Regulation as the Academy declaring that the value of Oscar to it is $1.
So what is the Academy to do in order to protect little Oscar from finding himself in a home unworthy of his majesty? The answer appears to be, “hope for the best.” For all of its vaguely menacing legal language, the Academy is largely left to pray that recipients of the prestigious award (and their family members after them) follow the Academy’s heed that they “adhere to the spirit as well as the letter of [its] rules.” If the Academy really wanted to get serious, it could move to a model in which it “lends” Oscar to the recipient instead of giving it to him or her. This might be overkill. The Academy has bigger problems to worry about, like the fact that close knockoffs are sold at every souvenir stand in Los Angeles.
Of course, as I stated above, the Academy’s contractual restrictions on Oscar disposal only date back to the 1950s. Plenty of Oscars were given out before then and continue to be sold on the secondary market. Sothebys and Christies have auctioned off many pre-1950s Oscars, and many are still available on the open market. So if you too would like to join the hallowed EGOT ranks of Whoopi, Mel, Barbara, and, of course, the legendary Tracy Jordan, maybe it would be easier for you to just whip out your checkbook.