Ever wonder what it’s like to be so famous that people who look like you can make money just by acting like you? We’ve all heard of stunt doubles. And most of us have seen the movie Dave. But not everyone is familiar with the phenomena of professional celebrity impersonation and the fun legal issues associated with it.
In this edition of Leggo My Likeness, we’ll take a look at 6’8” Michael Fanter of Antelope Valley, CA, who reportedly charges up to $600 per hour as a Pau Gasol impersonator. (For the record, the real Gasol — power forward for the Los Angeles Lakers, just in case you actually need that information — is listed at an even 7’, so I’d look for a $100-per-missing-inch discount.)
The Double Take
One of the two pictures below is Pau Gasol. Can you guess who it is?
(Read to the bottom of the post to find the answer, after some deeply insightful legal analysis about Fanter’s work — do not scroll without reading!)
So what exactly does a professional celebrity impersonator do?
On a recent KLAC show, Fanter explained, “I work with Pau Gasol…I, like, do commercials and stuff with him.” According to Fanter’s “official Pau Gasol impersonator website,” his services also include booking for corporate events, television and radio, film, commercials, basketball tournaments, club appearances, and more! Fanter may not speak Spanish, but that’s okay. He recently did a Nike commercial with Gasol and gets paid for club appearances. (No word on whether Fanter has ever tried to sneak into surgery at Children’s Hospital Los Angeles — a reported hobby of the real Gasol, who was a medical student in Spain before going pro. I’m not sure whether, as a patient, I would be less comfortable with a pro athlete scrubbing in, or a pro athlete impersonator.)
Fanter claims that Pau Gasol knows about him and that there’s no problem with what Fanter does. The legal notice on his website, “PauDouble.com” reads:
“Copyright ©2010 Michael Fanter PauDouble™. All Rights Reserved. Michael Fanter is not affiliated with the Los Angeles Lakers, the National Basketball Association, or Pau Gasol. Michael’s appearances are for entertainment purposes only.”
But what if Pau changed his mind? Could Pau do anything about Fanter’s “club appearances” and other bookings if he wanted to?
A person has the right to control the commercial use of his or her identity or “likeness.” As I have written about in the past, this right encompasses all of a person’s distinctive characteristics, e.g., the sound of a chanteuse’s voice; a basketball star’s former name; or even a race car driver’s distinctive racing car. Commercial use of such recognizable indicia of a celebrity’s identity can amount to a violation of the right of publicity, even if the celebrity’s own name, image, or voice is never actually used. That is, a person can assert the right to prohibit impersonations that are directly linked with the sale of a product. So if Nike put Fanter into a commercial as Paul Gasol without Pau’s permission, it would be pretty clear that Nike was violating Gasol’s right of publicity.
But it also isn’t necessarily clear that a right of publicity violation is being committed by the impersonator, as opposed to the company hiring the impersonator and using his or her image to evoke the celebrity. Lawsuits that have been filed in these contexts have not, to date, named the impersonators themselves as defendants — unsurprising given that the impersonators are probably waiting tables on Melrose to pay the bills between impersonation gigs, while plaintiffs generally prefer to sue defendants who can actually afford to pay up when they lose. (Go figure.) So if Nike put Fanter into a commercial as Pau Gasol without Pau’s permission, it would be somewhat less clear whether Fanter himself — who presumably was not claiming or even implying to Nike that he was the real Gasol — was violating Gasol’s right of publicity.
In any event, you can use a celebrity’s likeness in an indirectly commercial fashion — to sell commercials. Saturday Night Live, Family Guy, South Park, and similar parody-based shows are the perfect example of this. The First Amendment protects parodies because they enrich our culture. They make people laugh. (Well, SNL is supposed to make people laugh, anyhow…) And there is something creative in parodies worth protecting.
There is a limit, though. Parody still does not protect a direct commercial sale of a product. In other words, you cannot use the parody of a celebrity in a commercial to sell tennis shoes. Is this distinction between selling commercials for products and selling the products themselves meaningful? Not according to Ninth Circuit Judge and Best Dating Game Contestant of All Time Alex Kozinski, who — dissenting from the Ninth Circuit’s decision not to reconsider a case allowing Vanna White to pursue a right of publicity claim based on the use of an evening gown-clad robot in an advertisement for Samsung electronics — wrote:
“Both are equally profit-motivated. Both use a celebrity’s identity to sell things — one to sell [a product], the other to sell advertising. Both mock their subjects. Both try to make people laugh. Both add something, perhaps something worthwhile and memorable, perhaps not, to our culture. Both are things that the people being portrayed might dearly want to suppress.”
Nevertheless, one is allowable and the other isn’t. And if you wonder why the law would allow such a seeming inconsistency, clearly, you aren’t a regular reader of this blog. (You should really do something about that.)
But what about an impersonation at a night club? Does that involve parody? Probably not. Does it involve the sale of a product? The answer will depend on whose lawyer you ask. The celebrity’s lawyer will argue that the impersonator’s appearance at the club is directly connected to the sale of a product (e.g., alcohol). The club owner’s lawyer will argue that the impersonator is not selling any product at all. The impersonator’s lawyer probably won’t say anything at all, because the impersonator probably still can’t afford one — but if that lawyer existed, he or she would probably argue that it’s the club owner who is or isn’t selling a product, and the impersonator isn’t selling anything but him or herself (not in that way…bad readers).
The ultimate issue for a jury to decide is whether the club owners are commercially exploiting the celebrity’s likeness with the intent “to engender profits to their enterprises.” After all, “[t]he first step toward selling a product or service is to attract the consumer’s attention.” While the answer depends largely on the facts of the particular case, let’s just say that Fanter should be thankful for having Pau Gasol’s blessing for those club appearances.
(Double Take answer: The picture on the right is the real Pau Gasol. But I think they use the same barber.)