This story in the New York Times (noted here by Ann Bartow) on the licensing of Rosa Parks’s right of publicity is a must-read for those teaching intro IP courses. Perhaps most interesting is the role of new “rights brokers” like CMG:
The Parks Institute has decided that if it cannot beat the marketing pack, it might as well join it. In April, it hired CMG Worldwide, a company in Indianapolis that is a powerhouse in the world of celebrity licensing and merchandising. The company handles rights to such luminaries as Marilyn Monroe, James Dean and Mark Twain. Type â€œCMG Worldwideâ€ into Google, and a Whoâ€™s Who of celebrity Web sites pops up: Jean Harlow, Babe Ruth, Duke Ellington, Vince Lombardi and more, all carrying virtual warning labels bearing the CMG name.
The article raises some thorny conundrums. On the one hand, one can’t help but be disturbed by the following actions of the estate of another civil rights icon, Martin Luther King:
The King family [has] accused CBS of copyright infringement after the television network began promoting a video that contained clips of Dr. Kingâ€™s â€œI Have a Dreamâ€ speech. (The family later dropped the lawsuit in exchange for an undisclosed cash payment.) When USA Today published the same speech in 1993, the King family filed a lawsuit, which was later settled, contending copyright infringement.
King and Parks strike me as “public figures,” whose works or lives should be open to inspire all. But on the other hand, should law be creating explicit economic incentives to build “celebrity,” but fail to give IP rights to these figures, who’ve done a lot more to promote justice than, say, James Dean? This paradox reminds me of Tushnet’s recent talk on fair use doctrine’s apparent privileging of transgressive (and even misogynistic) uses over more conventional ones.
Mark McKenna has a good piece that should help us sort through some of the right of publicity issues here; he suggests that “every individual has an interest in preventing uses of her identity that strip her of control over the meaning of her identity,” and “It is that interest, and only that interest, that [right of publicity laws] should protect.” Under that rubric, I’d assume Parks could stop, say, the sale of a Parks-embossed school bus toy, but not the Outkast song. As for the copyright in King’s speech: there I’d go the same direction I mapped in my post on Joyce’s work–namely, it’s important enough to our culture that it ought to be the right of all to use it (even if we might want to develop some sort of compulsory use for clearly commercial reproductions).
If it’s important enough to the culture, then we might say that it’s commons-ized. But that concept is either so broad that it’s unworkable, or so narrow that it’s useless. We might know it when we see it, but we’ll often see different things.
But I don’t think that Mark McKenna’s standard is a more workable alternative; celebrity meaning is often at least as much a creature of consumer associations as a function of brand management. (William Shatner’s career, for example, is in many ways a delightful example of mixed meaning sources.) In some ideal world, it might be possible to separate the one from the other . . . .
You’re right that I’ve suggested that the right of publicity interest should be limited to control over the meaning of identity (the piece Frank’s referring to is at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=794844). But I don’t think my formulation necessarily leads to the conclusion that Rosa Parks could stop someone from using her image on a toy bus, unless people believed that Rosa Parks somehow sponsored or endorsed that use. I recognize there are some problems with tying the standard to something like the likelihood of confusion test in trademark law, but I think it would be a lot better than the system we have now (especially with more robust acceptance of disclaimers).
As for the question of how meaning is created, I guess I’m not as post-modern as Mike. I think the value of a particular image is largely dependent on how people respond to that image, but that particularly in the current celebrity packaging environment, the meaning is more a function of what’s projected. William Shatner’s career is actually a good example of that point – it is a combination of mixed meaning sources, but most of those meanings were ones he chose and projected.
I haven’t read McKenna’s piece yet (it’s in my bulging and guilt-inducing reading pile) but I would be skeptical based on your one-sentence summary. Aren’t the uses which have the potential to influence the meaning of a celebrity’s identity *precisely* those that we most want to protect? A school bus magnet has little impact on our interpretation of the meaning of Rosa Parks. But a song might be an important commentary on her. (OK, the particular OutKast song didn’t say all that much about Rosa Parks either, but it could have). What about an unauthorized two-hour biopic?
It’s a giant can of especially squiggly worms, no matter how you deal with it…
I suspect you’re right that the song is more likely to affect our interpretation of the meaning of Rosa Parks, and I think I probably agree that the song is a better candidate for initial inclusion under the right of publicity. But, as I make explicit in my paper, I was only trying to define the initial interest. The First Amendment interests in the song, in my view, would outweigh Rosa Parks’ interests in controlling the meaning of her identity. My hope was to avoid that conflict as much as possible – recognizing that it is not always possible.