MEJO 341 FINAL STUDY GUIDE
Two Types of Appropriation Claims - Answers - 1. Commercialization Claims
2. Right of Publicity Claims
Commercialization Claims - Answers - - Privacy-based (harm is invasion of personal
privacy)
- Someone who wants to remain private and unknown except to family and friends
- Cannot use person's NAME, PICTURE, LIKENESS, OR VOICE
- Violation causes emotional distress
- Exclusive use of one's identity = protected
- Does NOT survive death OR protect celebrities
Commercialization Defenses - Answers - 1. News
2. Public Domain
3. First Amendment
4. Incidental Use
5. Advertising for a Mass Medium
6. Consent
Right of Publicity Claims - Answers - - Appropriation of one's valuable publicity rights
- Someone who wants to be known far and wide - aka celebrity
- "Commercial value of a person's identity for purposes of trade" - purpose of trade =
used in advertising the user's goods or services
- Cannot use person's NAME, PICTURE, LIKENESS, VOICE OR IDENTITY—or
lookalike or soundalike
- Violation diminishes person's economic value
- CAN survive death
- Protects celebrities
Statutory Appropriation Claims - Answers - causes of action under state civil statutes -
at least 18 states have appropriation statutes, NC does NOT
California Civ. Code 3344 - Answers - - statutory appropriation claim
- any person who knowingly uses another's name, voice, signature, photograph, or
likeness in any manner for purposes of advertising or selling without person's prior
consent
- focuses on rights of publicity
- Claims under statute for DECEASED person for 70 years after death (rights
RETROACTIVE to persons who died 70 years before 1/1/85
,Midler Case - Answers - - Midler song - she sued advertiser and ad agency (Ford and
Y&R)
- Trial court granted S/J for Ford and Y&R (ad agency)
- Her actual voice was not used, so no common law claim or statutory claim for
appropriation under publicity
- Midler could sue under common law but not statute - WHY? COMMON LAW RIGHT
OF PUBLICITY applies to voice imitators - NOT STATUTORY
- Statute = must be use of name, voice, photograph or likeness (does not include
sound-a-likes)
- Midler won at trial under common law appropriation in California
- Under STATE COMMON LAW not under STATUTE
- no proof of actual malice because content was clearly a commercial ad
White vs. Samsung & DDA, Inc. - Answers - - Wheel of Fortune - Samsung advertising
VCR
- Dana sued for violation of common law and statutory rights of publicity
- NO recovery either under COMMON LAW OR STATUTORY CLAIM
- Federal appeals court: reversed
- no proof of actual malice because content was clearly a commercial ad
Appropriation Claim Defenses - Answers - 1. Consent
2. Newsworthiness
Consent - Answers - - Appropriation Claim Defense
- Written, express consent is strongest protection
Newsworthiness - Answers - - Appropriation Claim Defense
- most often used, aka common law defense
- when it's newsworthiness and not commercial
- can report on activity on celebrities
- allows courts to do MEDIA PROMOTION
- that means courts allowed promotion of newsworthy publication using newsworthy
names and photos when incidental to content and does not state or imply endorsement
- example: rejected Zacchini's case that it was newsworthy
Zacchini v. Scripps-Howard Case - Answers - - only case dealing with an appropriation
claim
- Zacchini the human cannonball - "newsworthy" performance
- Television station recorded 15 seconds of his act and showed recording on its news
program
- RIGHT OF PUBLICITY case
- Court focused on the economic value of his act, not on his desire to be private
- Station claimed newsworthiness defense, but Court rejected it and said recording
threatened performance's economic value
- First Amendment applies to reporting
,Dustin Hoffman Case - Answers - - content is fully-protected non-commercial speech
AKA news editorial, courts have required public figure plaintiffs prove actual malice
- Hoffman could not prove actual malice because it was "transformative" and there was
no malice
- NEWS-EDITORIAL = public figure plaintiffs must prove actual malice
- it was FULLY-PROTECTED NONCOMMERCIAL SPEECH because it was a news
editorial content and no commercial speaker or content
- no complete replication and for a different purpose (movie poster vs. fashion spread)
- commercials do NOT have to prove actual malice in claims
Cher was successful in her appropriation claim against Forum Magazine because... -
Answers - - it went beyond adjunct of promotion of content
- Used photographs of people out of context - violated right of publicity
- Also crossed the line by stating Cher (a celebrity) was endorsing the publication and
she encouraged readers to subscribe - ACTUAL MALICE
Jordan v. Jewel Food Stores - Answers - - COMMERCIAL SPEECH
- It used their branded information and the commercial speaker was targeting consumer
audience and promoting their brand using Jordan's name, shoes and number
Transformative Use Test - Answers - - determines whether a creator has transformed a
person's name, picture, likeness, voice, or identity for artistic purposes—if so, the
person cannot win a right of publicity suit against the creator
Transformative Use Test (5 Factors) - Answers - (1) Is "the celebrity likeness...one of
the 'raw materials' from which an original work is synthesized" or is the likeness "the
very sum and substance of the work in question[?]"
(2) Is the work "primarily the defendant's own expression...[meaning] something other
than the likeness of the celebrity[?]"
(3) Do "the literal and imitative or the creative elements predominate in the work[?]"
(More quantitative analysis than qualitative)
(4) Does "the marketability and economic value of the challenged work derive primarily
from the fame of the celebrity depicted[?]"
(5) Are the "artist's skills and talent...manifestly subordinated to the overall goal of
creating a conventional portrait of a celebrity so as to commercially exploit his or her
fame[?]"
Hart and Keller cases - Answers - athletes claimed that college football video games
that used avatars based on their likenesses violated their rights of publicity
Artistic Relevance Test - Answers - determine whether the use of a celebrity's name,
picture, etc. is relevant to a disputed work's artistic purpose—usually used for
infringement of a celebrity's right of publicity
Predominant Use Test - Answers - determine whether the defendant used the plaintiff's
name or picture more for commercial purposes or protected expression
, U.S. Constitution - Article I, Section 8 - Answers - - source of Congressional power to
protect intellectual property rights in the U.S.
- Congress shall have the power... to promote Progress of Science and useful Arts, by
securing for limited Times to Authors and Inventors the exclusive Right to their
respective Writings and Discoveries
Copyright Act - Answers - - type of Intellectual Property law
- refers to "writings" and is broadly defined
Trademark - Answers - - names, symbols that identify sources of products or services
- "service mark"
How does copyright protection arise? - Answers - - Arises when...
1. Work meets criteria of a "copyrightable" work
2. Owner of work derived in U.S. cannot sue for infringement unless work is registered
with U.S. Copyright Office
Copyright Law Protects... - Answers - published and unpublished work
What are the legal benefits of registration with the USCO? - Answers - - means public
record of © claim
- actual damages and profits
- Statutory damages if work registered within 3 months of publication or BEFORE
infringement
- Owner can seek injunction and also costs and attorney's fees
Copyrightable work criteria (3 things) - Answers - 1. Original works of authorship
2. Fixed in any tangible medium of expression
3. Perceived, reproduced or otherwise communicated either directly or with aid of some
device
Examples of work from Copyright Act - Answers - • Literary works - broadly defined
• Music works, including... words
• Dramatic works, including... music
• Pantomimes and choreographic works
• Pictorial, graphic, and sculptural works
• Motion pictures and other A/V works
• Sound recordings
• Architectural works (like plans)
Compilation - Answers - - work formed by the collection and assembling of preexisting
materials or of data that are selected, coordinated, or arranged in such a way that the
resulting work as a whole constitutes an original work of authorship'
- Ex: Dal Jones Index
Two Types of Appropriation Claims - Answers - 1. Commercialization Claims
2. Right of Publicity Claims
Commercialization Claims - Answers - - Privacy-based (harm is invasion of personal
privacy)
- Someone who wants to remain private and unknown except to family and friends
- Cannot use person's NAME, PICTURE, LIKENESS, OR VOICE
- Violation causes emotional distress
- Exclusive use of one's identity = protected
- Does NOT survive death OR protect celebrities
Commercialization Defenses - Answers - 1. News
2. Public Domain
3. First Amendment
4. Incidental Use
5. Advertising for a Mass Medium
6. Consent
Right of Publicity Claims - Answers - - Appropriation of one's valuable publicity rights
- Someone who wants to be known far and wide - aka celebrity
- "Commercial value of a person's identity for purposes of trade" - purpose of trade =
used in advertising the user's goods or services
- Cannot use person's NAME, PICTURE, LIKENESS, VOICE OR IDENTITY—or
lookalike or soundalike
- Violation diminishes person's economic value
- CAN survive death
- Protects celebrities
Statutory Appropriation Claims - Answers - causes of action under state civil statutes -
at least 18 states have appropriation statutes, NC does NOT
California Civ. Code 3344 - Answers - - statutory appropriation claim
- any person who knowingly uses another's name, voice, signature, photograph, or
likeness in any manner for purposes of advertising or selling without person's prior
consent
- focuses on rights of publicity
- Claims under statute for DECEASED person for 70 years after death (rights
RETROACTIVE to persons who died 70 years before 1/1/85
,Midler Case - Answers - - Midler song - she sued advertiser and ad agency (Ford and
Y&R)
- Trial court granted S/J for Ford and Y&R (ad agency)
- Her actual voice was not used, so no common law claim or statutory claim for
appropriation under publicity
- Midler could sue under common law but not statute - WHY? COMMON LAW RIGHT
OF PUBLICITY applies to voice imitators - NOT STATUTORY
- Statute = must be use of name, voice, photograph or likeness (does not include
sound-a-likes)
- Midler won at trial under common law appropriation in California
- Under STATE COMMON LAW not under STATUTE
- no proof of actual malice because content was clearly a commercial ad
White vs. Samsung & DDA, Inc. - Answers - - Wheel of Fortune - Samsung advertising
VCR
- Dana sued for violation of common law and statutory rights of publicity
- NO recovery either under COMMON LAW OR STATUTORY CLAIM
- Federal appeals court: reversed
- no proof of actual malice because content was clearly a commercial ad
Appropriation Claim Defenses - Answers - 1. Consent
2. Newsworthiness
Consent - Answers - - Appropriation Claim Defense
- Written, express consent is strongest protection
Newsworthiness - Answers - - Appropriation Claim Defense
- most often used, aka common law defense
- when it's newsworthiness and not commercial
- can report on activity on celebrities
- allows courts to do MEDIA PROMOTION
- that means courts allowed promotion of newsworthy publication using newsworthy
names and photos when incidental to content and does not state or imply endorsement
- example: rejected Zacchini's case that it was newsworthy
Zacchini v. Scripps-Howard Case - Answers - - only case dealing with an appropriation
claim
- Zacchini the human cannonball - "newsworthy" performance
- Television station recorded 15 seconds of his act and showed recording on its news
program
- RIGHT OF PUBLICITY case
- Court focused on the economic value of his act, not on his desire to be private
- Station claimed newsworthiness defense, but Court rejected it and said recording
threatened performance's economic value
- First Amendment applies to reporting
,Dustin Hoffman Case - Answers - - content is fully-protected non-commercial speech
AKA news editorial, courts have required public figure plaintiffs prove actual malice
- Hoffman could not prove actual malice because it was "transformative" and there was
no malice
- NEWS-EDITORIAL = public figure plaintiffs must prove actual malice
- it was FULLY-PROTECTED NONCOMMERCIAL SPEECH because it was a news
editorial content and no commercial speaker or content
- no complete replication and for a different purpose (movie poster vs. fashion spread)
- commercials do NOT have to prove actual malice in claims
Cher was successful in her appropriation claim against Forum Magazine because... -
Answers - - it went beyond adjunct of promotion of content
- Used photographs of people out of context - violated right of publicity
- Also crossed the line by stating Cher (a celebrity) was endorsing the publication and
she encouraged readers to subscribe - ACTUAL MALICE
Jordan v. Jewel Food Stores - Answers - - COMMERCIAL SPEECH
- It used their branded information and the commercial speaker was targeting consumer
audience and promoting their brand using Jordan's name, shoes and number
Transformative Use Test - Answers - - determines whether a creator has transformed a
person's name, picture, likeness, voice, or identity for artistic purposes—if so, the
person cannot win a right of publicity suit against the creator
Transformative Use Test (5 Factors) - Answers - (1) Is "the celebrity likeness...one of
the 'raw materials' from which an original work is synthesized" or is the likeness "the
very sum and substance of the work in question[?]"
(2) Is the work "primarily the defendant's own expression...[meaning] something other
than the likeness of the celebrity[?]"
(3) Do "the literal and imitative or the creative elements predominate in the work[?]"
(More quantitative analysis than qualitative)
(4) Does "the marketability and economic value of the challenged work derive primarily
from the fame of the celebrity depicted[?]"
(5) Are the "artist's skills and talent...manifestly subordinated to the overall goal of
creating a conventional portrait of a celebrity so as to commercially exploit his or her
fame[?]"
Hart and Keller cases - Answers - athletes claimed that college football video games
that used avatars based on their likenesses violated their rights of publicity
Artistic Relevance Test - Answers - determine whether the use of a celebrity's name,
picture, etc. is relevant to a disputed work's artistic purpose—usually used for
infringement of a celebrity's right of publicity
Predominant Use Test - Answers - determine whether the defendant used the plaintiff's
name or picture more for commercial purposes or protected expression
, U.S. Constitution - Article I, Section 8 - Answers - - source of Congressional power to
protect intellectual property rights in the U.S.
- Congress shall have the power... to promote Progress of Science and useful Arts, by
securing for limited Times to Authors and Inventors the exclusive Right to their
respective Writings and Discoveries
Copyright Act - Answers - - type of Intellectual Property law
- refers to "writings" and is broadly defined
Trademark - Answers - - names, symbols that identify sources of products or services
- "service mark"
How does copyright protection arise? - Answers - - Arises when...
1. Work meets criteria of a "copyrightable" work
2. Owner of work derived in U.S. cannot sue for infringement unless work is registered
with U.S. Copyright Office
Copyright Law Protects... - Answers - published and unpublished work
What are the legal benefits of registration with the USCO? - Answers - - means public
record of © claim
- actual damages and profits
- Statutory damages if work registered within 3 months of publication or BEFORE
infringement
- Owner can seek injunction and also costs and attorney's fees
Copyrightable work criteria (3 things) - Answers - 1. Original works of authorship
2. Fixed in any tangible medium of expression
3. Perceived, reproduced or otherwise communicated either directly or with aid of some
device
Examples of work from Copyright Act - Answers - • Literary works - broadly defined
• Music works, including... words
• Dramatic works, including... music
• Pantomimes and choreographic works
• Pictorial, graphic, and sculptural works
• Motion pictures and other A/V works
• Sound recordings
• Architectural works (like plans)
Compilation - Answers - - work formed by the collection and assembling of preexisting
materials or of data that are selected, coordinated, or arranged in such a way that the
resulting work as a whole constitutes an original work of authorship'
- Ex: Dal Jones Index
