In a recent email from a choreographer who operates the downtowndancer.com blog, an interesting example of the confluence of copyright and right of publicity is raised. On the site, there is reference to a dispute involving a choreographer whose picture was taken by a dance photographer. The photograph was then used as the basis for a painting which became the label for an expensive wine. When the dancer contacted the photographer, she was supposedly told that because the painter was inspired by, and not copying her image directly, and in another format, no payment to her was required.
On May 9th, I did a blog on the Seventh Circuit's Toney opinion, where a model able to prevail under a state right of publicity claim, with the panel reversing an earlier ruling that the Copyright Act preempted such claims. The twist in the choreographer/wine case is not in preemption, but in the degree to which right of publicity claims may be influenced by copyright principles, in particular transformative use. One might think that the two types of protection wouldn't influence each other, but in the well-known case of Comedy III Productions, Inc. v. Saderup, 25 Cal. 4th 387 (Cal. 2001), the California Supreme Court reconciled First Amendment concerns in the creation of art using individuals' images (there the Three Stooges) with publicity rights by incorporating the copyright transformative use concept, writing "when a work contains significant transformative elements, it is also less likely to interfere with the economic interest protected by the right of publicity." 25 Cal. 4th at 405.
Comedy III was followed in 2003 by Edgar Winter v. DC Comics, 30 Cal. 4th 881 (Cal. 2003), letting DC off the hook for a miniseries featuring two singing cowboys that were "less than subtle invocations of Winter and others. The court stated a test of asking "whether the celebrity likeness is one of the 'raw materials' from which an original work is synthesized, or whether the depiction or imitation of the celebrity is the very sum and substance of the work in question." 30 Cal. 4th at 888.
I don't know more about the facts in the choreographer-wine case, whether she is a protected under the relevant publicity statute, but the California Supreme Court provides one mode of analysis.
The question of preemption has been long settled as addressed by decisions from Midler to Comedy III. Wisely, courts have determined that copyright and right of publicity are not equivalent rights in that an individual’s name, likeness, image and persona are not an original work of authorship fixed in a tangible medium of expression. The issues in Comedy III and Winters regarding the transformative use related more specifically to the balancing of a state right with the First Amendment. That being said, half-worm half- human characters in a comic book that resemble an individual might be transformative and therefore be protected. A charcoal sketch of an individual printed on a T-shirt is more likely the use of a persona “on or in a product … or for the purposes of promoting goods or services.” I would suggest that the image of Ms. LeBlanc would be actionable in California.
ReplyDeleteMr. Patry,
ReplyDeleteDo you know where we could see the works at issue, the wine perhaps?
Scott: I don't see how you could comment on whether work in question is actionable unless you first look at the work and analyze how transformative the likeness is.
An example: The Logo for the NBA is an artist's depiction of the silhouette of the famous basketball player, Jerry West. I knew who Jerry West was and what he looked like for ten years and I had seen that logo ubiquitously for 20, before I found out that the figure in the logo was inspired by Mr. West's silhouette. I don't think Mr. West could claim a violation of his right publicity from that logo, because no one would recognize it was him, and therefore the NBA is not trading on the value of his persona.
I am trying to get a link to photos.
ReplyDeleteHello interested parties,
ReplyDeleteHere is the link to the wine label:
http://www.bedellcellars.com/storepics/artist.jpg
Its by Eric Fischl. I'm looking for the "inspiration" photo. Its hard to find. According to the dancer, the photographer never sold the image to the artist or the wine cellar. Hope this helps.
Although the right of publicity seems to get increasingly (and unjustifiably) broader (see White v. Samsung), it's hard to see any right of publicity claim based on this image. The last time I checked, the person whose right of publicity is infringed has to be identifiable in the infringing image (although the White case certainly stretched that concept).
ReplyDeleteHere's a link with a picture of the label: http://downtowndancer.com/?p=82
ReplyDelete