PUBLICITY

HISTORY

Roberson v. Rochester Folding Box Co. (NY 1902).

New York Civil Rights Law, secs. 50 and 51.

sec. 50 It is a misdemeanor if:

sec. 51

*defendant uses plaintiff's name, portrait, or picture (in NY)

*for advertising or trade purposes

*without plaintiff's written consent

DEFENSES: news or use in conjunction with newsworthy items, "incidental use," look-alike with disclaimer, real relationship

Pavesich v. New England Life Insurance Co. (Ga. 1905).

 

PRIVACY: appropriation of plaintiff's name/likeness/persona for defendant's advantage

*defendant has used plaintiff's identity or persona

*without permission

*plaintiff has been identified

*resulting in damage to plaintiff's dignity, peace of mind

DEFENSE: consent

 

PUBLICITY

*[celebrity] plaintiff has exploited her persona/identity

*defendant has used plaintiff's persona/identity

*without permission

*resulting in economic harm to the plaintiff

Case: Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc. (2d Cir. 1953).

First recognition of the right.

PUBLICITY RIGHTS AND ENTERTAINMENT

Case: Zacchini v. Scripps-Howard Broaadcasting Co. (1977).

Zacchini has a human cannonball act lasting 15 seconds. Defendant taped and broadcast the entire performance on the news.

*interest "in protecting the proprietary interest of the individual in his act in part to encourage such entertainment."

*"An entertainer . . . usually has no objection to the widespread publication of his act as long as he gets the commercial benefit."

p. 232

Case: Matthews v. Wozencraft (5th Cir. 1994).

*Texas publicity tort does not apply to life stories

*most of the facts about the plaintiff are a matter of public record

*his name/likeness has no special value to be appropriated p. 237

CRIMINAL CELEBRITIES

David Berkowitz

"Son of Sam" Laws, pp. 250ff.

Simon and Schuster v. New York State Crime Victim's Board

Note on Louise Woodward book contract, pp. 269-270

[wrongful death tort suits]

O.J. Simpson, "If I Did It"

CELEBRITY PUBLICITY AS A MARKETING VEHICLE

Case: Johnny Carson v. Here's Johnny Portable Tiolets, Inc. (6th Cir. 1983).

*identity can be appropriated without the use of name or likeness

Motschenbacher v. R.J. Reynolds Tobacco Co.

Hirsh v. S.C. Johnson & Sons, Inc.

See dissent, pp. 274-275

Case: Midler v. Ford Motor Company (9th Cir. 1988).

The Ford Motor Company contracted with Young & Rubicam for "The Yuppie Campaign." Each of the 19 ads featured a different popular song from the "70s. Y&R tried to get the original artists. 9 of the original singers agreed. 10 refused. For these 10 Y&R used "sound alikes."

Bette's song, "Do You Want to Dance?" was sung by sound alike, Ula Hedwig (who was a back-up singer for BM for 10 years).

Issues:

1. Does the CA Civil Code apply: "use of name, voice, signature, photograph or likeness" . . . "in any manner."

2. Can she sue for her right of publicity?

Case: Midler v. Young & Rubicam (9th Cir. 1993).

The jury has awarded Midler $400,000.

Issues:

1. punative damages

2. preemption of publicity by copyright law

Case:Vanna White v. Samsung Electronics, America, Inc., 9th Cir. 1992). pp. 281ff.

Defendant's 21st Century ad campaign featured a cultural artifact from the 20th century and a Samsung electronic product. One ad for VCR's features a robot turning letters on "the longest-running game show",

Vanna is suing:

1. California Civil Code

*use of name, voice, signature, photo or likeness

*for advt/trade purposes

*without consent

2. Publicity

See Michael Jordan analogy p. 282

Parody defense?? See dissent, p. 284

Back to NY

*look alikes

Case: Allen v. National Video, Inc. (S.DN.Y. 1985)

p. 286, n. 5

Onassis v. Dior (Sup. Ct. NY 1983) p. 285, n. 1