An insightful and well-written article by Eriq Gardner of The Hollywood Reporter can be found here: http://www.hollywoodreporter.com/thr-esq/why-hulk-hogans-140-million-876990
My take on the $140 million jury award to Hulk Hogan against Gawker is that it does not portend a stifling of the press or an impediment on the First Amendment. The amount is a lot, sure. A substantial amount of it is punitive damages. And to be clear, there are particular facts in this case that should give everyone pause about how far the media can go in publicizing information of any kind, at any cost, no matter how it is obtained, and no matter the consequences.
I’m not taking a position on whether Gawker should or shouldn’t be liable or to what extent. But just as the First Amendment and freedom of the press is of paramount importance and should be cautiously navigated, so too is the right of privacy and the extent to which any and every piece of information can be deemed newsworthy and subsequently published.
The Right of Publicity and the First Amendment have always moved in lockstep. Some cases get it right; some don’t. Some favor the First Amendment, others favor the Right of Publicity.
As Eriq Gardner’s article correctly notes, the ruling is likely to be appealed. The amount of the award could easily be reduced. The parties could settle on an undisclosed amount to end the litigation.
But I do not have any particular concerns at the moment about the fallout of the Hulk Hogan ruling. The facts of the case are quite specific, and the legal process has to be allowed to play out. If a jury finds that something unacceptable or egregious took place, perhaps they are not wrong.
Beyonce suit against Feyonce knockoffs illustrates need for Right of Publicity distinct from trademark
Italian Steve Jobs fashion company makes obvious the necessity for meaningful Right of Publicity provisions
Indiana Supreme Court rules on fantasy gambling newsworthiness in Daniels et. al. v. FanDuel and DraftKings, No. 18S-CQ-00134 (10/24/18)
Suit involving famous marathon runner and TM "advertising idea" appears to have Right of Publicity underpinnings (9/21/18)
LeBron James declaration regarding his likeness and tattoos implicates both Right of Publicity and copyright (8/28/18)
I had an engaging discussion with Ted Johnson of Variety Magazine regarding virtual celebrities earlier this week, and the opportunities and pitfalls presented by the technology that allows famous persons to be flawlessly recreated. The opportunities and pitfalls are, in short, considerable.
Ted Johnson’s article appears in the latest edition of Variety as well as online. You can check it out at this link: http://www.variety.com/article/VR1118055844
The biggest Right of Publicity story of 2012 so far has to be the news that a company called In Icons is preparing to issue a Steve Jobs action figure. In response, Apple reportedly sent a cease and desist letter to In Icons, prompting Tandy Cheung of In Icons to state “Apple can do anything they like…I will not stop, we already started production.”
I hate to break it to them, but if an activity is prohibited by law, the fact that the offending company is already in production would provide no defense or entitlement to proceed. This Steve Jobs action figure is exactly the kind of unauthorized commercial product that the Right of Publicity is designed to address, if not prevent.
Cheung reportedly stated “Steve Jobs is not an actor, he’s just a celebrity,” and that “[t]here is no copyright protection for a normal person.” Aside from the various legal errors in that comment, I can’t help thinking that this line of thought is exactly what gets companies sued for Right of Publicity violations.
Here is a link to the MSNBC article containing Cheung’s quotes and reporting many more details on this story: http://technolog.msnbc.msn.com/_news/2012/01/05/9972437-apple-tries-to-ban-realistic-steve-jobs-action-figure
The MSNBC article states that Apple claims to own the post-mortem rights to Steve Jobs’ name, image and likeness, as manifest by the In Icons action figure. I do not know whether or not Apple has affirmatively made that assertion or if that is an assumption being drawn from the fact that Apple issued the cease and desist letter. All things being equal, I would have assumed that Steve Jobs’ family would be the beneficiary of Steve Jobs’ Right of Publicity. Perhaps Apple does in fact have an ownership interest in Steve Jobs’ Right of Publicity. The Right of Publicity is assignable during life or at death through testamentary documents or intestate succession. The Right of Publicity is also divisible in whole or in part, meaning that several owners could own varying percentages of his Right of Publicity. Alternatively, perhaps Apple is simply handling administrative duties such as protecting against unauthorized use of Steve Jobs’ Right of Publicity. Presumably, Apple’s legal advisors and Steve Jobs’ family and heirs have already addressed this crucial point.
In researching this story, I also came across another write-up about the Steve Jobs action figure on Paidcontent.org entitled “Steve Jobs Doll Legal In Most States, Not Indiana” which can be accessed here: http://paidcontent.org/article/419-steve-jobs-doll-legal-in-most-states-not-indiana/
This article seems to conclude that the Steve Jobs action figure is only actionable in those states with a statutory Right of Publicity in place. The article ends by listing those states with a statutory Right of Publicity but does not include California, which is a fairly important jurisdiction for Right of Publicity matters. California, in 2008, passed legislation confirming that the Right of Publicity does apply to those persons who died prior to passage of the statute. Here’s a link to the amended language: http://rightofpublicity.com/statutes/california-2008-amendment-to-33441
This amendment, signed into law by Governor Schwarzenegger, was in response to a California ruling that concluded that Marilyn Monroe was not entitled to statutory Right of Publicity protection under California law, because of the perceived location of, and law of, her domicile at the time that she died in 1956. California’s 2008 bill was in fact just a clarification that the law indeed always was supposed to apply to those who predeceased passage of the statute.
Right of Publicity litigation usually involves application of the Single Publication Rule, which in general terms allows a claimant to address the totality of the infringement through one cause of action. In the absence of such procedural efficiency, a claimant might be forced to go state by state, litigating the same basic nucleus of facts, against the same parties, over only those activities that took place in that particular state. If courts are overburdened now, which they generally are, just imagine the inefficiency and backlog that such an approach would generate.
As for Steve Jobs and whomever is the appropriate party to assert a claim for violation of his Right of Publicity, I am confident that the law would back them up if they have to litigate in response to a Steve Jobs action figure. If not, one would have to wonder why the Right of Publicity exists in the first place.
Tags: amendment, Apple, biggest story of 2012, California, Governor Schwarzenegger, In Icons, infringement, Marilyn Monroe, Right of Publicity, Single Publication Rule, Steve Jobs, Tandy Cheung, unauthorized commercial product