Right of Publicity

Now listen to my story ‘bout an actress named Donna.

In case you don’t recall The Beverly Hillbillies (read: are under the age of 40), the series (which ran on CBS from 1962 to 1971, and which has enjoyed a long life in syndication) followed the Clampett family, a group of poor yokels who strike it rich after accidentally discovering oil (“Texas tea”) on their generically Southern swamp, move to Beverly Hills, and inexplicably continue to drive around in a jalopy and dress like extras from The Grapes of Wrath. One of the show’s highlights was buxom, come-hither Clampett daughter Elly May, played by an actress named Donna Douglas, whose principal non-Elly May-related claim to fame is some obscure on-set philosophizing with Elvis during the shooting of Frankie and Johnny. (And one of its lowlights was a tragic 1993 attempt at a feature film — with Playboy model and Baywatch babe Erika Eleniak reprising the role of Elly May — which garnered such rave reviews as “Unbearable,” “Was this really necessary?” and “Four writers worked on the script, and they all should hang their heads in shame.”)

Last week, Douglas sued Mattel in federal court in Baton Rouge, Louisiana over the toymaker’s recent release of an “Elly May” Barbie, asserting claims for false endorsement under the Lanham Act, violation of the Louisiana right of publicity statute, common law misappropriation, and unjust enrichment. In her complaint, Douglas asserts that the packaging and publicity for the Elly May Barbie use Douglas’s photograph and name, and that the doll itself copies Douglas’s “distinctive attributes in the portrayal of the Elly May character.” Douglas also claims that she never endorsed the doll or gave Mattel permission to use her name or likeness to promote sales of the Elly May Barbie. As Elly May herself might say: “Well, come on, baby. Let’s wrassle.”

Aside from raising questions about Mattel’s marketing strategy here — I’m guessing this is a “collector’s item,” because have any adolescent girls ever even heard of The Beverly Hillbillies? — Douglas’s lawsuit highlights a potential collision between the right of publicity and the rights granted to copyright owners.
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Celebrities have a lot of influence over modern society. They influence how we dress (hey celebrities, can someone put an end to the unflattering skinny jeans trend, please?), how we talk (or had you not noticed your frattiest coworkers repeating “that’s hot” and “winning” ad nauseum), how we dance (who started this fist-pumping thing, anyway?), the way we vote (or whether we vote at all), and what we buy. Not surprisingly, companies take advantage of this bizarre phenomenon by paying celebrities to promote their products. For example, football great and ladies’ man Joe Namath showed off his shapely gams to endorse Beautymist pantyhose in a silly commercial, supermodel Heidi Klum strangely decided to lend her name and face to a fat-free fruit candy, and Oprah’s multi-sector Midas touch is so potent she has an “Effect” named after her.

Occasionally, a company might incorporate a celebrity’s quote into an advertisement to hype a particular product or service. For instance, the late suit designer and proprietor of “the most expensive store in the world,” Bijan, teamed up with the uber-expensive Rolls-Royce in a partnership that Bush the Elder (that’s right, George H.W. Bush himself) describes on a Santa Monica Blvd. billboard as “[a] class act designer partnered with a class act car.” It is probably safe to assume that Bijan/Rolls-Royce obtained permission to use George Bush’s name and quote on that billboard (and if not, I know a good lawyer). But, because we live in a world where people do not always ask for permission (or otherwise abide by the law), this billboard made me think about the limitations on using a celebrity’s quote in an advertisement.
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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!)
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Even before Natalie Portman won her Best Actress Oscar for her role in Black Swan, critics and audiences alike were buzzing about her disturbing performance as a dedicated-but-delusional prima ballerina. Recently, however, the discussion of Portman’s performance has taken a turn towards the controversial, as Sarah Lane — an American Ballet Theater soloist and one of Portman’s Black Swan dance doubles — has emerged with allegations that Portman did just 5% of the full body dance shots seen in the finished film.

Lane claims she is the victim of a “cover-up” by the filmmakers. Although she commends Portman for trying “to go method” and losing “a lot of weight” for the film, Lane blasts her single’s dancing (if Lane is Portman’s double, doesn’t that make Portman Lane’s single?), saying Portman didn’t look “at all” like a professional dancer and couldn’t even dance in pointe shoes. Lane’s comments came just days after Portman’s choreographer-slash-baby-daddy Benjamin Millepied boasted to the Los Angeles Times that Lane did only a very minimal amount of dancing in the film and that “Honestly, 85 percent of that movie is Natalie.” Since Lane made her “5%” claim, however, the film’s producers, director and co-stars have come to Portman’s defense, with director Darren Aronofsky issuing a statement yesterday saying that of the 139 dance shots in the film, 111 — or, 80% — are Portman untouched, and when you consider screen time, 90% of the dancing is Portman.

Even if all the “did she or didn’t she” discussion surrounding Portman’s Oscar and dance performance misses the real issue — namely, that this should have been Annette Benning’s year — it did get me thinking about the use of doubles in film, and what potential legal claims actors and their doubles might have when situations like this arise.
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By now, I’m sure many of you have seen the Old Navy commercial starring Kim Kardashian Melissa Molinaro, a curvy, dark-haired Kim Kardashian lookalike who bursts into song and dance while looking “super C-U-T-E” in her Old Navy duds. Like many of you, I did a double take when I saw this commercial for the first time. Upon closer examination (read: once I caught a glimpse of the star’s normal-sized backside and nimble dance moves), I realized the star of the commercial was not Kim, but just a woman with a striking resemblance to the reality TV star/fashionista/walking proof of the decline of Western civilization.

After the commercial first aired in February, articles devoted to Old Navy’s use of Kim’s spitting image popped up all over the Internet. Molinaro herself has called the comparisons to Kardashian “extremely flattering” — but of course, who’s to say whether Kim herself would agree? So, naturally, upon first viewing Molinaro’s commercial, the lawyer in me immediately thought, “Can Kim sue Old Navy for using her lookalike in a commercial without her permission?” Then, the blogger in me thought, “I should write a blog about this!” (Then, the normal human being in me thought, “What have I become?”) So, let’s see if the law is on Kim’s side.
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While buying a present for my son recently at a local surf-and-skate shop, I decided to check out the current crop of skateboard decks. For those not into skating (or who don’t have kids into skating), the underside of boards — you know, the part that no one will ever see if you are actually riding the board successfully — have striking graphics that are a big part of why you choose, and how much you pay for, a particular board. (Well that makes perfect sense — you’re welcome, fellow confused parents.)

One deck immediately stood out: a drawing of E.T. and Michael Jackson in an embrace, below the caption “Alien vs. Predator.”

The board is pretty hilarious, but also risky. Because I am a lawyer, and because lawyers must check their unfettered-by-legal-obsession senses of humor at the law school gate, I couldn’t help thinking about numerous potential legal claims that several plaintiffs might be able to bring.
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In 2006, the California Court of Appeal in Kirby v. Sega held that a video game’s depiction of pop singer Deee-Lite in a fanciful outer space setting is a “transformative use” protected by the First Amendment. On Wednesday of this week, the California Court of Appeal in No Doubt v. Activision held that a video game’s depiction of pop singer Gwen Stefani in a fanciful outer space setting singing songs she would never perform is not transformative, and therefore not protected by the First Amendment. And if the seeming inconsistency between those two rulings confuses the heck out of you, welcome to the club.

The tension between the right of publicity and the First Amendment is thicker than the“extenders” and “non-meat substances” in Taco Bell’s “seasoned beef.” I know this firsthand. A dozen years ago, my colleagues and I represented Dustin Hoffman in a lawsuit against Los Angeles Magazine, which took a picture of Hoffman as he appeared in Tootsie, superimposed his head on the body of a male model wearing the latest dress and high heels, and used him as an involuntary model in one of its fashion issues. We won the case at trial, and Hoffman was awarded $3 million dollars in damages (including $1.5 million in punitive damages). Unfortunately for us and our client, the Ninth Circuit later reversed, finding that the magazine’s conduct was protected by the First Amendment.

In the intervening years, the state of right of publicity law has only become more confusing, primarily as a result of California’s I-know-it-when-I-see-it concept of “transformative use.” This doctrine is meant to balance a publisher’s First Amendment interests against a celebrity’s interest in preventing the unauthorized use of his name and likeness for commercial purposes. An admirable enough goal, right? And the California Supreme Court purports to have reduced that goal to a fairly straightforward-sounding “test”: “when artistic expression takes the form of a literal depiction or imitation of a celebrity for commercial gain” without adding additional significant expression, the use is not “transformative” and is an infringement; but if the celebrity image is merely one of the “raw materials from which an original work is synthesized,” the work is transformative and is protected by the First Amendment.

I practice in this area of law, and I like to think of myself as reasonably bright, but I have yet to fully understand this so-called “test.” And judging by the way the cases have come down on this issue, courts are just as perplexed as I am:
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In a recent episode of CBS’ The Good Wife (which this blogger will go ahead and admit she loves, particularly for its disciplined realism — because obviously, all fresh-out-of-law-school first year associates get to try murder cases by themselves), Zachary Florrick (the teenage son of the title character) was pressured by ne’er-do-well vixen Becca into setting up a fake Facebook page in the name of a classmate. (Another reason I love this show: gives me an excuse to use the phrase “ne’er-do-well”.) Not coincidentally, this classmate was the teenage son of Zach’s dad’s opponent in the race for State’s Attorney, Glenn Childs. Zach also created a video mocking the third candidate in the State’s Attorney race, while making it look like the video came from Childs.

In the show, hapless Zach’s actions resulted in harm to his father’s campaign: what he thought was a harmless prank was taken by the Childs campaign as a declaration of war from the Florrick campaign. But thanks to a new law on the books in California, the real-life ramifications of such actions may now be even more serious — to the tune of monetary fines and prison time.

Effective January 1, 2011, California Penal Code section 528.5 makes it a crime to impersonate another person online. Specifically, “any person who knowingly and without consent credibly impersonates another actual person through or on an Internet Web site or by other electronic means for purposes of harming, intimidating, threatening, or defrauding another person is guilty of a public offense.” Violation can result in a prison sentence of up to one year and a fine of up to $1,000 — plus a civil lawsuit from the aggrieved party. Of course, because our readers are all fine, responsible, upstanding citizens, I’m confident that none of you need to fear this new law. But let’s say you, too, were a dastardly ne’er-do-well (twice in one post!) embarking on a campaign of Internet impersonation. What would you need to know?
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As we embark upon the hectic holiday season, we at Law Law Land would like to take a moment to reflect on all of the things we have to be thankful for in this, our blog’s first year. We are thankful for our loyal readers, all eight of you. We are thankful for our jobs, and for the free donuts on the first Wednesday of every month. And perhaps most importantly, we are thankful for frivolous entertainment industry lawsuits. They keep us entertained, they give us an endless supply of things to write about, and if we’re really lucky, they pay our bills.

With this in mind, and in the spirit of the Thanksgiving holiday, we chronicle some of the legal world’s biggest turkeys:
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Q: I’m making a series of humorous short films about the dot com bubble days. One of the characters is named Gill Bates in a not-so-subtle dig at you know who. We’re pretty hard on him in a humorous way. Do I need to worry about defamation or name and likeness issues with this or any other “based on real life” characters we may use?

A: I like where you went with this. It’s pretty impressive that you took one of America’s most beloved nerds and, through a simple switcheroo of letters, made him sound even nerdier with a name like “Gill.” Then you creeped it up with a last name like “Bates.” Which is perfect because I’m pretty sure Bill Gates sits up in his room wearing his mother’s wig arguing with himself about whether he should be allowed to invite Steve Jobs in for supper.

Did you see what I did right there? I not only made a half-hearted attempt at a movie-themed joke, I also demonstrated my lack of fear about telling the world that a public figure dresses up like his mother and converses with himself, knowing it’s probably not true. Is the source of this fearlessness my unbridled confidence that my good looks can get me out of any bind? Most likely. (I’m still very excited about our new profile pictures.) However, I also derive comfort from South Park’s favorite constitutional protection: the First Amendment.
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