CELEBRATED STATUS: PROTECTABLE INTEREST OR SACRIFICIAL LAMB?
The right of publicity and how it works.

© 2010 Mark H. Barinholtz

 

Introduction

              Late January as I was completing this article, I noticed CBS’ Sunday Morning show focused on the concept of “celebrity” and what it means. There was an interview with Harvey Levin of TMZ, a short segment on J.D. Salinger, the reclusive author of The Catcher in the Rye, who died recently, and pieces on various entertainers, including the British actor Colin Firth, and music group The Black Eyed Peas. What had sparked my thinking about “celebrity” was a squib I read last Fall one Friday the 13th, in the “red hot” section of the Chicago Tribune’s RedEye edition. In an interview reportedly given to The New York Times, Megan Fox of Transformers fame, was quoted as saying, “being a celebrity is like being a sacrificial lamb. At some point,” she reportedly said, “no matter how high the pedestal that they put you on, they’re going to tear you down.”

              I’m not sure who the “they” are that she was referring to, but I’m guessing she meant the collective public, press and others, including industry insiders, who are fascinated by celebrity, and drawn to its heat -- only to become bored and dismissive when the initial flame dies down. I began to ponder how celebrities sometimes find themselves in conflict between the chase for fame and the price notoriety inevitably brings. As a lawyer, my thoughts focused on legal remedies, and how they might square with Ms. Fox’s views.

              The question this article explores is what forms of legal protection exist to assist the celebrity in maintaining the value of her persona. Although other branches of law, e.g., trademark, defamation, and protection of privacy rights, can play an important role, a significant legal doctrine for protecting the celebrity is the right of publicity.

The Myth of the Sacrifice

              Long ago, superstitious man thought that by making an offering to his god of a valued possession, e.g., a lamb, the offeror might obtain in turn, a more highly valued favor from the deity. The sacrifice was often designed to foster the common good, such as purging a plague or ensuring the harvest. In the worlds of politics and entertainment, the two areas where celebrated status exists most prominently, the sacrificial lamb is a common theme. Did the Republicans really expect former Ambassador Alan Keyes to win against Barack Obama in the 2004 U.S. Senate race in Illinois? Or was he sacrificed by the party? And, in a recent interview for Entertainment Weekly, LL Cool J described several roles in his early screen career as playing against a “dubious tradition” -- being the sacrificial lamb -- by being the only African American character in horror films that didn’t die early on.

              So, I wonder if Megan Fox was perhaps transferring the "sacrificial lamb" concept behind some of the roles she plays in the movies to her own professional life? It’s a bit cynical, if not sad, to think of the celebrity as someone who must continually be looking over her shoulder, expecting to be knocked down. I once heard an actor express regret over diminishing fame, as “you can never be new again.” But, in addition to simple perseverance, there are legal tools which can help such persons maintain the value of their position -- a measure of protection against the sacrifice.

              When considering that Vanna White of Wheel of Fortune fame won a substantial mid- six-figure award of damages against Samsung in the mid-1990's for the unauthorized use of a robot “look-alike” of her in a commercial, the value of those tools becomes clear. And, when it is reported that endorsement deals for sports stars like LeBron James and George Foreman can exceed $100 million, it pays to take notice of the value of their publicity rights.

The Political Celebrity and the Entertainment Celebrity

              Celebrated status arises mainly in two of life’s endeavors. Political, think Sarah Palin, Barack Obama. And entertainment, including sports, think Michael Jordan, Oprah Winfrey. The level of celebrity sometimes rises to a significant point where name and face recognition become so pervasive that the individual’s persona takes on a new meaning above and beyond the ordinary lives that most others experience. Most often, an individual’s rise to fame is not a mere accident, but the result of dedication, talent and “luck” borne out of persistence. Of course, sometimes being well-known has little to do with talent, and more to do with notoriety for its own sake. However, once there’s a spark of heat leading to some success, the publicity machine often takes over and propels the merely successful into celebrated status.

Right of Publicity Acts

              In 2007, the Illinois appellate court, in a ruling allowing the Estate of soul artist James Brown to proceed with publicity rights claims against a stock photo agency, remarked that 19 states have right of publicity statutes and another 18 have a recognized common law right of publicity. For celebrities, these rights provide significant weapons with which to fight infringing activities.

              Although sports and political celebrities come from many areas geographically, the entertainment industry generates its full share of stars based upon the nature of the business. So, California and New York have many. Indiana claims James Dean. Tennessee has Elvis. Many of these properties, both living and dead, are managed through sophisticated firms specializing in protecting and exploiting celebrity rights.

              Specific provisions of the Illinois Right of Publicity Act of 1999 (the Act) allow individuals, both celebrated and non-celebrated, the right to protect and control the commercial use of their identity. Under the Illinois statute an individual’s identity means any one or more of various attributes which serve “to identify that individual to an ordinary, reasonable viewer or listener.” The kinds of attributes the statute lists include, but are not limited to, the individual’s name, signature, photograph, image, likeness or voice. In terms of the Act’s purpose, the Illinois legislature expressly recognized the existence of the right of publicity and described the right as an individual’s ability “to control and to choose whether and how to use [that] individual’s identity for commercial purposes.”

              In Illinois, the right of publicity is a species of property right which is transferrable, in whole or in part, either by written instrument or by intestate succession to specific types of heirs, such as an individual’s spouse or children. Although the rights themselves are not subject to levy or attachment, and may not be the subject of a security interest, the proceeds of the rights, or of the exercise of the rights, may be so encumbered.

              Significantly, the Illinois Right of Publicity Act describes certain uses of the individual’s identity to which the Act does not apply. For example, the Act appears to exempt efforts to “portray, describe or impersonate” an individual through various kinds of works including a play, book, article or film. The exemptions do not appear to apply if those works are merely designed to exploit an otherwise commercial advertisement for non-protected goods or services. Miscellaneous other exemptions pertaining to news, the truthful identifying of an author or performer, and other specific uses are also described in the statute.

              Violators are subject to a range of potent remedies including injunction, disgorgement of profits, and punitive damages. The infringer may also find himself subject to an award of attorney’s fees.

Is bad publicity better than no publicity?

              For the most part, publicity surrounding celebrities comes from several sources. First, their own publicists and other representatives are often working the media to inject stories and other items which the celebrity himself deems important for his career. Often, that’s the source of “good publicity.” However, once celebrated status is achieved, the news media, in particular that branch which is dedicated to gossip, is often seeking to exploit the negative aspects of a celebrity’s life (or death) in order to titillate and appeal to a specific audience. Although it’s certainly news when Rock Hudson announces he has AIDS, or when Michael Jackson goes on trial for allegations of abuse, is there really a need for the Stalkerazzi and the Paparazzi to be peering into the very private hours of these individuals and reporting on what they claim to find? Perhaps Tiger Woods or presidential hopeful John Edwards can shed some light on that question.

              Although we often hear the saying that “bad publicity is better than no publicity,” from a legal standpoint, one should be aware of the law as it pertains to defamation and invasion of privacy, and related issues, before taking this folksy approach too seriously. Untrue reports can be harmful, if not devastating, and the celebrity should always be concerned when she is held up publicly to a false light.

Does Barack really care?

              In the political arena, the celebrity’s rights are viewed through another prism, the message of political commentary which goes to the heart of protected activity under the First Amendment. The First Amendment actually ensures five basic freedoms, (i) religion, (ii) speech, (iii) press, (iv) assembly, and (v) petition. Often, we focus on freedom of speech and the press as being fundamental.

                 But, when Michelle Obama states publicly that she doesn’t wear fur, is her picture fair game for use in a PETA (People for Ethical Treatment of Animals) anti-fur ad campaign? And, when President Obama is photographed on the Great Wall of China wearing an overcoat manufactured by Weatherproof Co., can that apparel firm use his picture in an ad to sell its coats? Recent controversies over such issues have not settled the question of whether such arguably commercial uses are protected speech. Rather, these very real controversies have been resolved out of court when such ads were pulled by PETA and the Weatherproof Co., publicly professing to “cooperate” with White House policy against such uses of the President's and the First Lady's identities.

              In another somewhat less clear example, the Jailbreak Toy company sells The Obama Action Figure. The Internet product description calls him a “superhero,” and credits him for inspiring millions to hope. But do you think Barack gets a royalty from the sales? I doubt it, although the ad claims it will donate $1.00 to his campaign for every figure sold. Often, an issue in these situations is whether such use of the individual’s identity is merely commercial or a protected vehicle of free speech. While politicians may give up a lot by injecting themselves into the limelight, they still have identities which may or may not be subject to protection.

Conclusion

              The publicity right of a celebrated individual is important, since it allows the individual to control the commercial use of his identity, to stop it, or to recapture profits that others may improperly seek to reap from infringing exploitation. The celebrity’s very livelihood may be at issue. For the celebrity, earnings from high salaries or endorsement deals can be enormous. Protection of integrity can be essential. Vigilance and prosecution may mean the difference between enforcing the value of the rights in one’s own persona or being the sacrificial lamb.

 

© 2010 Mark H. Barinholtz

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