Shockingly Evil: the Cruel Invasive Appropriation and Exploitation of Victims' Rights of Publicity in the True Crime Genre

• Publication year: 2020

Shockingly Evil: The Cruel Invasive Appropriation and Exploitation of Victims' Rights of Publicity in the True Crime Genre

Ashton Williams
University of Georgia School of Law

Shockingly Evil: The Cruel Invasive Appropriation and Exploitation of Victims' Rights of Publicity in the True Crime Genre

Cover Page Footnote

J.D. Candidate, 2021, University of Georgia School of Law.

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SHOCKINGLY EVIL: THE CRUEL INVASIVE APPROPRIATION AND EXPLOITATION OF VICTIMS' RIGHTS OF PUBLICITY IN THE TRUE CRIME GENRE

Ashton Williams^*

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TABLE OF CONTENTS

I. INTRODUCTION.....................................................................................305

II. BACKGROUND.........................................................................................305

A. EXPLOSION OF THE TRUE CRIME GENRE.................................................305
B. BEGINNINGS OF THE RIGHT OF PUBLICITY.............................................309
C. EVOLUTION OF THE RIGHT OF PUBLICITY...............................................310
D. FIRST AMENDMENT AND THE RIGHT OF PUBLICITY...........................311
E. SON OF SAM LAWS.................................................................................................312
F. CELEBRITY CRIMINALS.......................................................................................314
G. ACCIDENTAL CELEBRITIES...............................................................................314
H. LIBEL VS DEFAMATION VS RIGHT OF PUBLICITY .................................. 315

III. Analysis.......................................................................................................316

A. CALIFORNIA'S RIGHT OF PUBLICITY LAWS................................................317
B. NEW JERSEY'S PROGRESSIVE APPROACH...................................................319
C. SOCIETAL INCENTIVES AND MORALITY....................................................321
D. GIVING VICTIMS THEIR VOICES BACK........................................................324

IV. Conclusion ................................................................................................ 327

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I. INTRODUCTION

"We serial killers are your sons, we are your husbands, we are everywhere."¹ Ted Bundy's haunting words are more accurate than he could have known. Jeffrey Dahmer, Charles Manson, Dennis Radar (aka "BTK"), and John Wayne Gacy are a few of the many names that elicit nightmares and horror to essentially every American with access to media. Famous for their ghastly crimes, serial killers captivate the country with their terrible acts. What is more troubling, however, is that it seems as if, today, serial killers are everywhere in a way that Ted Bundy could not have anticipated. Not only are their crimes broadcast over the news throughout their violent killing sprees, the vicious murders are now often memorialized in the form of dramatic reenactments in the popular genre of "true crime".

The "true crime" genre has expanded to virtually every medium; podcasts, television shows, movies, and more captivate audiences with scarily realistic representations of crimes. Directors and screenwriters often utilize the real names, images, and likeness of the killers, victims, investigators, lawyers, and family members involved without so much as a consultation to any of the individuals whose identities are being recreated. Thus, in most cases, true crime capitalizes on the exploitation of individuals' personhood. This leads to the question of whether individuals portrayed or discussed in these reenactments should have their identity protected through right of publicity laws.

II. BACKGROUND

A. EXPLOSION OF THE TRUE CRIME GENRE

Americans have seemingly become obsessed with the infamous dramatizations of the country's most notorious killers.² The growing popularity of the true crime genre has led to the creation of shows and movies such as Mindhunter,³ Extremely Wicked, Shockingly Evil and Vile,⁴ The People v. O.J.,⁵ and Making a

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Murderer.⁶ Additionally, podcasts like Serial⁷ and Dr. Death⁸ capitalize on discussing the crimes and allegations against convicted killers. "While many directors take creative liberties, it is quite common for shows to feature the real identities of not only the criminals, but also the victims, victims' family members, police officers, FBI agents, and lawyers associated with the crimes. Just as captivating as the gruesome deaths and killers are the law enforcement personnel tracking them down and the family members of victims grappling with the loss of loved ones.

The show Mindhunter follows the early stages of a team of FBI psychological profilers' investigation into what motivates a serial killer to commit his crimes.⁹ The series is a dramatization of the real-life crimes that the behavioral analysis unit of the FBI worked to solve.¹⁰ All characters are played by actors and the episodes are scripted, yet the victims' and killers' real names are used along with real-life events and details.¹¹ The actors and actresses also closely resemble their real-life counterparts.¹² Season two features the infamous Atlanta child murders from the late 1970's. Viewers sympathize with Camille Bell and Venus Taylor in their attempts to bring attention to the loss of their sons and other young murder victims plaguing Atlanta.¹³ Both brave mothers are prominent characters in season two, yet neither of these real-life women were ever contacted by anyone connected with production of the show.¹⁴ The two women's valiant efforts to find justice for their sons are utilized without ever giving consent to the show's use of their likeness.¹⁵

Audiences of Extremely Wicked, Shockingly Evil and Vile share in the torment of Ted Bundy's girlfriend, Elizabeth Kloepfer, as she discovers and grapples with

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the double life he leads.¹⁶ Kloepfer wrote about her time with Bundy under the pseudonym "Elizabeth Kendall".¹⁷ The tale of Bundy's crimes through Kloepfer's point of view is a rare instance in which the story is based off of Kloepfer's memoir: The Phantom Prince: My Life with Ted Bundy.¹⁸ Kloepfer was consulted and included throughout the production of the film.¹⁹ At first, however, Kloepfer wasn't going to be included with production.²⁰ It was only after her lawyers got involved that she was given the opportunity to tell her story for the first time on film.²¹ In an interview, Kloepfer recalled:

'They were telling my story about Ted Bundy, and they had never contacted me,' Kendall told Vanity Fair on Thursday morning in a rare interview. Kendall turned the matter over to her attorneys, then tried to steel herself—as she had multiple times before, whenever pop culture turned its obsessive eye back to Bundy. She thought, Oh, no, here we go again, and returned to counseling. 'I knew it was going to be hard,' she said. 'I was just appalled that this was going to start up again.'²²

The film captures the real events surrounding Bundy's arrest and trials complete with actors portraying his wife, lawyers, and victims.²³ Zac Efron and Lily Collins, playing Bundy and Kloepfer respectively, bring the terrifying tale to life. But it is important to note that while Kendall was consulted about the film's use of her life story and likeness, there is no indication that any of the victims' family members were consulted about the film's use of their loved ones names and likenesses. Moreover, Judge Cowart, who sentenced Ted Bundy, is also portrayed in the film by John Malkovich despite the fact that he died in 1987 and therefore could not consent to the use of his likeness. In fact, the inspiration for the movie title comes from his admonition of Bundy at the end of his trial.²⁴ In his closing

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statement, he said, "[t]he court finds that both of these killings were indeed heinous, atrocious and cruel and that they were extremely wicked, shockingly evil, [vile] and the product of design to inflict a high degree of pain and utter indifference to human life."²⁵

Other series, such as The People v. O.J. Simpson, memorialize the crimes of celebrities.²⁶ The People v. O.J is one season of the franchise American Crime Story.²⁷ The season covers when Simpson was charged and tried for the murders of Nicole Brown and Ron Goldman. Both the Brown and Goldman families were altered forever by the loss of their loved ones. Viewers are not only captivated by Simpson but also by the dynamic prosecution and defense teams.²⁸ The victims' families, the lawyers, the jurors, and Judge Ito also take prominent roles throughout. The reenactments of the real events are complete with the names and personal characteristics that captivated the nation during the actual trial. In the series, you can see actors portray both Brown and Goldman's families as they endure the traumatizing events and lengthy trial. This is not the only time that directors have used the likeness of those involved with the murders. Victim Ron Goldman has his own Wikipedia page, complete with a separate tab titled "Portrayals", where you can find a brief history of all the different films and reenactments of his death that have been created beyond just The People v. O.J. Simpson.²⁹

Shows such as Making a Murderer and podcasts such as Serial and Dr. Death take a more direct approach to retelling crimes. Combining news footage with interviews of individuals involved, these series provide a critique of the crimes, sometimes even attempting to throw doubt onto convictions. While some who were directly involved in the horrific events are interviewed, the shows widely discuss all parties to the case, including anyone who refused to participate. The identities and actions of all involved are scrutinized for public entertainment, regardless of whether they consented to use of their identity.

There is a wide spectrum of appropriation of victims' and third parties' identity used in commercial recreations for entertainment. From dramatic portrayals by actors...