Comments on: Contextual Integrity: Is Copyright a Good Privacy Protector?

By: Greg Lastowka

Greg Lastowka — Fri, 23 May 2008 21:09:19 +0000

Oh — and in response to the question. No, I had quite a few students this semester writing some great papers on the subject of the right of publicity, but no one decided to talk about this particular niche!

By: Greg Lastowka

Greg Lastowka — Fri, 23 May 2008 21:07:22 +0000

Hi Jill –

On what basis are you sure of that?

Other than the Cortez case about Cigar, there’s nothing out there on this, as far as I know.

Good luck with your research!

By: Jill

Jill — Fri, 23 May 2008 19:07:56 +0000

Just read this blog today because I’m trying to learn more specifics about animals and the right to publicity or appropriation rights. The horse referred to above was Cigar. You can use Google to find the decision.

Although it varies from state to state, I’m pretty sure you’ll find that right of publicity claims and appropriation claims have been made successfully if the animal is distinctive (versus looking like all others of its species or breed), and famous (recognizable), and sometimes if a secondary recognition has been established.

Greg, I’m curious if you ever asked that student to research this topic. It’s a fascinating one. If you’ve learned anything different or new, please do share! Thanks.

By: Greg Lastowka

Greg Lastowka — Thu, 17 Jan 2008 02:03:53 +0000

Just a footnote on the doctrinal point:

I should clarify that while Nimmer says “no” as a matter of doctrine circa 1954, it’s pretty clear that he’d prefer the answer to be “yes” eventually, so Ann doesn’t have to disagree with Nimmer, exactly, this time.

Also, out of curiosity, I looked at what Prof. McCarthy has to say on this. See J. Thomas McCarthy, 1 Rights of Publicity and Privacy § 4:36 (2d ed 2007). Short answer: no, it has never floated, but he’s also open to someone trying out a Trigger-type claim.

By: Deven

Deven — Mon, 14 Jan 2008 21:45:28 +0000

Greg

To clarify, I think your article is quite clear about that point and does a good job noting the difficulties of the problem. My concern is that as Frank notes and you detail the move towards TM or privacy claims opens up high protectionist moves. That seems dangerous to me yet I like property and some protection. Lessig’s points on this issue ring true to me although many seem to think he is an anarchist.

By: Greg Lastowka

Greg Lastowka — Fri, 11 Jan 2008 18:15:55 +0000

Honesty is good. I’m a fan of Mark’s piece too.

I’ve actually got very ambivalent feelings about the right of publicity. The TM/Authorship article wasn’t so much an argument for greater powers for authors, but an argument that the Supreme Court’s Dastar decision operated contrary to the logic of trademark, especially w/r/t its solicitude for the interests of consumers.

If we can generalize about these things, I remain a low-protectionist at heart.

By: Deven

Deven — Fri, 11 Jan 2008 17:33:35 +0000

So this may lead away from animals but McKenna’s piece of Right of Publicity is quite good. It is The Right of Publicity and Autonomous Self-Definition vol 67 of Pitt. Law Review. The issue is control. Greg’s The Trademark Function of Authorship also drives at the issue. I must be honest and note that I think these arguments are dangerous as they offer too much control. My recent work tries to show why one may need and perhaps should have control while alive but after one dies almost all these claims should vanish.

By: Greg Lastowka

Greg Lastowka — Wed, 09 Jan 2008 01:22:54 +0000

Well, you have a case like that in Motschenbacher, where a race car essentially was claimed under the publicity right of the driver. If Trigger can be analogized to a car (both are modes of transport, I guess) then maybe that would be close enough for some court somewhere.

For me personally, Trigger, being a living creature, mostly evokes Trigger. Or, in the alternative, Dale Evans evokes Roy for me as much as Trigger does, yet Roy can’t claim a right of publicity in Dale. (Of course, Dale, unlike Trigger, has an independent right.)

By: Frank Pasquale

Frank Pasquale — Wed, 09 Jan 2008 00:52:34 +0000

I agree with Ann’s point, which I was led towards in the “right of pug-licity” riff I put up on concurring opinions today. As Dogan put it, there might be an “exclusive right to evoke,” and if the dog evokes the person, we may want to protect their RoP my protecting uses of the dog.

In this case, I do not think most people associated Truman the Pug with Sweetney the blogger.

By: Ann Bartow

Ann Bartow — Tue, 08 Jan 2008 18:39:28 +0000

Much as I hate to disagree with Nimmer (cough, cough) I wonder if someone couldn’t persuasively argue an associative right of publicity, if an animal was closely linked to a person? I’m not a fan of RoP doctrine but if you’re going to have one driven by economics it makes just as much sense to “protect” Trigger as Roy Rogers.