Yesterday's Stamford Connecticut Advocate had an article noting that the state Senate's Judiciary Committee has shelved a bill to provide a right of publicity despite lobbying efforts by Paul Newman, Christopher Plummer, and Charles Grodin. The bill's sponsor, Senator Andrew MacDonald, is quoted as saying "There just wasn't enough time for us to work through what the difference between between political satire and parody is, and what would be justifiable for a public figure to expect protection for." Motion picture studios argued against the bill, saying that the bill "suffered from ... severe First Amendment problems, particularly because the bill applied to all individuals," adding "Technically, anything from Jon Stewart's show to parodies of political figures to movies like 'Contact' and 'Forest Gump' where you're using news footage and that kind of thing of public figures would be subject to litigation."
Other courts, particularly in California have not read publicity rights so broadly, and have incorporated copyright fair use principles, not in toto, but as, appropriate, in pari passu. In Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387 (Cal. 2001), the California Supreme Court wrote:
"Some commentators have proposed importing the fair use defense from copyright law (17 U.S.C. § 107), which has the advantage of employing an established doctrine developed from a related area of the law. Others disagree, pointing to the murkiness of the fair use doctrine and arguing that the idea/expression dichotomy, rather than fair use, is the principal means of reconciling copyright protection and First Amendment rights. We conclude that a wholesale importation of the fair use doctrine into right of publicity law would not be advisable. At least two of the factors employed in the fair use test, "the nature of the copyrighted work" and "the amount and substantiality of the portion used" (17 U.S.C. § 107(2), (3)), seem particularly designed to be applied to the partial copying of works of authorship "fixed in [a] tangible medium of expression" (17 U.S.C. § 102); it is difficult to understand why these factors would be especially useful for determining whether the depiction of a celebrity likeness is protected by the First Amendment.Nonetheless, the first fair use factor--"the purpose and character of the use" (17 U.S.C. § 107(1))--does seem particularly pertinent to the task of reconciling the rights of free expression and publicity. As the Supreme Court has stated, the central purpose of the inquiry into this fair use factor "is to see, in Justice Story's words, whether the new work merely 'supersede[s] the objects' of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is 'transformative.'Although such transformative use is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works." Campbell v. Acuff-Rose Music, Inc. (1994) 510 U.S. 569, 579 This inquiry into whether a work is "transformative" appears to us to be necessarily at the heart of any judicial attempt to square the right of publicity with the First Amendment. As the above quotation suggests, both the First Amendment and copyright law have a common goal of encouragement of free expression and creativity, the former by protecting such expression from government interference, the latter by protecting the creative fruits of intellectual and artistic labor. The right of publicity, at least theoretically, shares this goal with copyright law. When artistic expression takes the form of a literal depiction or imitation of a celebrity for commercial gain, n9 directly trespassing on the right of publicity without adding significant expression beyond that trespass, the state law interest in protecting the fruits of artistic labor outweighs the expressive interests of the imitative artist. Inquiry into the "purpose and character" of the work in copyright law also includes "whether such use is of a commercial nature or is for nonprofit educational purposes." (17 U.S.C. § 107(1).) It could be argued that reproduction of a celebrity likeness for noncommercial use--e.g., T-shirts of a recently deceased rock musician produced by a fan as a not-for-profit tribute--is a form of personal expression and therefore more worthy of First Amendment protection. "
Two years later, in Edgar Winter v. DC Comics, 30 Cal. 4th 881 (Cal. 2003), the California Supreme Court revisited the issue in a dispute over DC Comics' five-volume miniseries featuring two singing cowboys, finding the use to be one of parody. In the Connecticut examples of "Contact" and "Forrest Gump," those would uses, under copyright law, be considered transformative. Perhaps in the next iteration of the Connecticut bill there will be a fair-use type exception, but in any event, it is interesting to see two different areas of law come closer together.