A New Test to Reconcile the Right of Publicity With Core First Amendment Values

• Jurisdiction: California,United States
• Citation: Vol. 23 No. 1
• Publication year: 2015

A New Test to Reconcile the Right of Publicity with Core First Amendment Values

Mark Joseph Stern

Nat Stern

Florida State University College of Law

[Page 93]

A NEW TEST TO RECONCILE THE RIGHT OF PUBLICITY WITH CORE FIRST AMENDMENT VALUES

Mark Joseph Stern^* and Nat Stern^**

Table of Contents

I. Introduction.............................................................................................94

II. The Modern Rise of Publicity Rights..............................................95

III. The Right of Publicity's Emerging Threat to Critical Speech.........................................................................................................101

IV. The Proposed Test................................................................................105

V. Vindicating First Amendment Interests....................................108

VI. Conclusion...............................................................................................112

[Page 94]

I. Introduction

In July of 2014, Manuel Noriega—the infamous drug-trafficker, arms dealer, and deposed military dictator of Panama¹ —filed a lawsuit in California state court against the video game publisher Activision. His complaint alleged that Activision had violated his "right of publicity" under California law by publishing Call of Duty: Black Ops II, a popular video game.² Black Ops II features a character named Manuel Noriega who bears the real Noriega's likeness and is depicted as a brutal murderer.³ According to Noriega, this use of his persona constituted " 'blatant misuse, unlawful exploitation and misappropriation of plaintiff's image and likeness for economic gain.' "⁴

In October 2014, a judge for the Superior Court of California in the County of Los Angeles dismissed Noriega's suit under California's anti-SLAPP suit statute.⁵ According to the court, Black Ops constituted a "transformative work"—meaning Noriega's likeness was but one small piece of a broader, expressive original creation—and was therefore shielded by the First Amendment from a right of publicity suit.⁶ Thus, Activision's free speech rights trumped Noriega's publicity rights.⁷

Though this result is undoubtedly correct, the court's logic—while accurately reflecting the state of the law—is troubling. Activision was permitted to use Noriega's likeness primarily because his character played a minor, fanciful role in a sprawling, imaginative work of fiction.⁸ In this situation, the "transformative work" test constituted a sufficient First Amendment buffer. It is disturbingly easy, however, to imagine a similar situation with a dramatically

[Page 95]

different outcome. Noriega's right of publicity suit was—it seems obvious—an intentional infliction of emotional distress suit in disguise. The former dictator was clearly agitated by his portrayal as a madman, not by his portrayal per se. His suit failed because his character appeared on screen so briefly. However, this reasoning leaves in question the outcome if the game's creators had used Black Ops II to criticize and mock Noriega more thoroughly and included him as a central character. Under those circumstances, the "transformative work" test would have offered no shield; indeed, Noriega may well have won his lawsuit.

Part II of this Article presents an overview of the history of right of publicity claims, explaining how they grew out of, and ultimately detached from, the right of privacy. Part III will explore the unnerving emergence of a new breed of right to publicity lawsuits: those designed to censor criticism of, and commentary upon, a public official or public figure. This Part will then describe why recent right to publicity rulings fail to protect artists, especially video game makers, from lawsuits designed to suppress political speech. Part IV proposes a new legal test to help guard expressive works—especially video games—against such suits, even when the works themselves are not legally "transformative." Finally, Part V explains how the proposed test promotes principles and values that lie at the heart of the First Amendment's protection of speech.

Although this proposed test is novel, its underpinnings are not. The Supreme Court has previously encountered the conundrum of a tort that, while neutral on its face, allows public figures to make an end run around the First Amendment. In response, it has imported First Amendment jurisprudence into tort law to stymie ingenious attempts by public figures to silence their critics.⁹ Courts should perform a similar analysis when faced with a right of publicity suit that seems designed to curb free speech. This analysis becomes especially important when a publicity suit targets a video game. The fact that video games have emerged as a favored target of such suits suggests that the very thing that makes video games so revolutionarily expressive—their ability to realistically depict interactive, fictional worlds—also puts them at a heightened risk of censorship under the guise of lawsuits.

II. The Modern Rise of Publicity Rights

The right of publicity is thoroughly modern in every sense of the word. Its philosophical and legal foundations would have been utterly foreign to the founding generation, who had no conception of fame as a commercial asset to be monetized. In fact, the Founders seem to have viewed their own fame as "a

[Page 96]

kind of common republican property," to be deployed as a means of promoting "independence and nation building."¹⁰ Fame for the Founders was not "an instrumental good," but rather a " 'final' good," valued "for its own sake" as a reward for "disinterested civic virtue."¹¹

This view of fame was also held by most Americans in the century following the founding. As the civic fame of the Founders broadened into less high-minded realms, a vibrant celebrity culture flourished among authors and performers.¹² Although these celebrities' likenesses were often exploited for commercial gain—the names and faces of popular figures adorned a wide array of products, from toys and bicycles to furniture and cigars—no corresponding "right of publicity" emerged.¹³ The notion of fame as a "species of common property" persisted, even as commercial exploitation skyrocketed.¹⁴

However, in the last two decades of the nineteenth century, these "unspoken as sumption[s]" about one's right to one's own image shifted dramatically.¹⁵ As photography and printing technology grew more sophisticated, pictorial advertisements exploded, and famous people began to attempt to assert commercial control over their likenesses.¹⁶ Predictably, most courts rejected these early suits; still, a few prescient courts recognized an individual's proprietary interest in his own identity.¹⁷

A very different theory of publicity rights took center stage, however, as a result of Samuel Warren and Louis Brandeis's seminal 1890 article proposing the existence of a right to privacy.¹⁸ Warren and Brandeis intended the right to protect primarily against journalistic intrusiveness and seem not to have intended their privacy doctrine to extend to an explicitly proprietary conception

[Page 97]

of one's identity.¹⁹ Yet the first legislature to enshrine a right to privacy in statute, New York, turned the concept into an early right of publicity, creating criminal and civil liability for the unauthorized use of the " 'name, portrait or picture' " of any living person for " 'advertising purposes, or for the purposes of trade.' "²⁰ Similarly, the first state supreme court to find a common law right to privacy²¹ interpreted this right as a publicity right one that forbade the unauthorized use of a person's picture in advertising.²²

These early successes, however, turned out to be outliers. Most legislatures that codified a right to privacy²³ —as well as most courts that developed the right into common law²⁴ —required plaintiffs who alleged a violation to prove embarrassment or emotional distress. But a movie star who sees her face on an unauthorized advertisement could hardly claim to be emotionally disturbed, and so courts generally rejected the idea of a right of publicity that grew out of generalized privacy rights.²⁵ Under one especially popular theory, celebrities waived any rights of publicity when they achieved a significant measure of fame.²⁶ In one case, the court rejected the publicity rights claim of a famous college football player whose image had been used in advertising, without permission, by a beer company.²⁷ "[T]he publicity he got," the court wrote of the player, "was only that which he had been constantly seeking and receiving."²⁸ In another case, an actress sued a burlesque theater for placing her photograph at its entrance, despite the fact that the actress did not, and had never, appeared in any burlesque shows.²⁹ The court ruled against the actress,

[Page 98]

finding that, by appearing in films, she had entirely surrendered her right to privacy.³⁰

Other courts developed a slightly more nuanced interpretation of publicity rights, holding that only offensive or defamatory misappropriation of celebrity likenesses was actionable.³¹ And some courts that jettisoned the offensiveness requirement in establishing a cause of action still preserved it when establishing damages.³² In one high-profile case, Zelma Cason sued the author Marjorie Kinnan Rawlings for invasion of privacy after Rawlings's autobiography described Cason, using her real forename, as "an ageless spinster resembling an angry and efficient canary."³³ The Florida Supreme Court—confronting the right of privacy issue for the first time—held that though Cason had sufficiently established a cause of action, she could not collect damages because "[t]here was no mental anguish—no loss of friends or respect in the community—no injury to character or reputation."³⁴ Tellingly, Cason's suit had originally included a libel claim, which the court threw out.³⁵

The Second Circuit's decision in Haelan Laboratories, Inc. v. Topps Chewing Gum,...