What an interesting question! I wish I could give you a more definite
answer than I will. This is one of those areas where the law isn't
particularly clear, so I'm glad you recognize you'll need to talk to
an attorney who's expert on this subject before you invest too much in
your efforts. I'm also going to assume your concern is U.S. law;
obviously, even if you're abroad you're going to have to look at U.S.
law if you hope to market in that country.
First, what we're talking about here is what is known in legal circles
as the "right of publicity." It is related to the right of privacy
but isn't the same thing. Basically, it's the recognition that people
can have a interest, particularly a commercial interest, in their
names and likenesses.
If the right of publicity were absolute, it would be impossible to
write about or portray just about anybody. Balancing the right of
publicity is the First Amendment. The First Amendment is quite broad
and gives people the right to write or portray all sorts of people.
But the First Amendment isn't absolute either.
So let me give you two examples of where the law is clear, first one
in which the First Amendment is relied upon, and the second where the
right of publicity rules.
First example: If you were writing a news story about the Beatles,
you're perfectly free to use their names, and you could accompany the
article with pictures (provided you had rights to the photos). You
could similarly refer to the characters in an editorial or a scholarly
analysis of how the characters have influenced society. For such
purposes, anybody is fair game. Along that same line, courts have
upheld the right to publish "unauthorized biographies," since, after
all, history is history.
Second example: You want to use a picture of Yoko Ono in an
advertisement in such a way that it appears she's endorsing the
product. The right of publicity has developed exactly for that
reason. There's no court in the land that would let you get away with
it if Ono objects.
The right of publicity is a fairly recently recognized right. It is
generally accepted these days as an evolving "common law" right, that
is, one that has been gradually recognized by the courts despite the
lack of legislative support. In addition, there are some states
(California, New York and Illinois are among them) that have
additionally passed laws that can supersede or supplement the common
law.
OK, now let's look at your situation. I'm going to assume that your
song and video would be developed primarily so you can make a profit.
(If you were making an election campaign video, for example, different
rules would apply.)
First off, it probably doesn't make any difference whether you use
phony names or somehow try to distance your work in some small way
from the celebrities, as the following excerpt of a legal analysis
indicates:
The Evolution of the Protected "Persona"
"The right of publicity originated as a prohibition against
misappropriating a person's 'name or likeness.' This idea of 'name or
likeness' has been stretched, most liberally under common law, to
include, among other things, a look-alike ... a nickname ... a phrase
... a sound-alike-voice ... a unique and distinctively marked car ...
and a former name ...
http://www.gseis.ucla.edu/iclp/rftb.html
The key, then, is that if what you're doing is obviously using the
likeness of John and Yoko, it doesn't really matter whether you're
talking about the Beetles or the Beatles.
I suggest you read the documents below that I have provided links to.
Generally, they would indicate that your proposal treads into legally
dangerous waters. The courts generally recognize that people have the
right to how their names and likenesses are used in a commercial way
(other than in news reports and protected political commentary).
One interesting case, though, and this is very close to what you're
doing with your song, is using a celebrity in a work of fiction. The
following excerpt from an article on fan web sites is informative:
The Entanglement of "fan web sites" and the right of publicity
"Although the First Amendment protects works of fiction, the cases
applying this exception have all involved the use of a celebrity's
name and likeness in a fictionalized account of that celebrity's life
or some event involving that particular celebrity. And clearly the
First Amendment does not shield all works of fiction from liability
under copyright law, in fact, there is much debate over whether fan
fiction constitutes copyright infringement. Therefore, the guarantee
of free speech is not so broad as to prevent a right of publicity
claim where the work of fiction is using the celebrity's identity but
not in connection with that celebrity's life."
http://www.gseis.ucla.edu/iclp/manship1.htm
In other words, if you use a celebrity in fiction your work might be
protected, but you nevertheless take a substantial legal risk.
The following excerpt of a legal analysis is similarly instructive.
Written by the counsel for an author's organization, the analysis
gives the hypothetical example of someone producing a musical about
Humphrey Bogart.
Limitations on "Right of Publicity"
"Even 'protected' uses [protected by the First Amendment], like books
or plays or movies, may require rights from the owners of the persona.
For example, often it will be difficult or undesirable to write a
musical or a motion picture based on a dead personality without the
cooperation of his or her family ..."
That brings up another issue involved your proposal. One of your main
characters is living, while the other is dead. Your rights to use the
living character may be more limited than the rights to a dead
character. But even the rights to a dead character are limited,
especially in the first generation or so after the person's death.
Like I said, I wish I could give you a clearer answer, but the law
really isn't all that clear. And the law might be applied differently
as it affects simply naming people in a song (which would more likely
be acceptable as a protected comment about a person) than putting the
characters in a video (which would use a protected visual likeness and
perhaps mimic various characteristics of the person). Also, the more
that your work could be perceived as political, social or religious
commentary, the more likely your work would be protected. Things
really depend upon the individual facts of the case.
If I were to guess -- and this is only a guess based on what I've read
and my knowledge of First Amendment issues -- I'd guess that you'd be
free to mention Ono and Lennon in your song but face legal challenges
if you put the characters in a video. One approach you might consider
(but only if your attorney agrees) is to talk to Oko's and Lennon's
publicity agents ahead of time and negotiate a deal.
Another issue that could come up, although it's beyond the scope of
what I'm discussing, is any possible use of lyrics or anything else
that Lennon or Oko have written. Depending on how they're used, even
a brief quotation could violate copyright law. The same could be said
of using portions of their tunes.
I suggest you read through the articles linked to below. They are
quite interesting and give a good background on the current state of
the law.
Right of Publicity and Right of Privacy: An Overview
This is a good summary of the issues involved.
http://www.law.cornell.edu/topics/publicity.html
The Right Of Publicity: Going to the Dogs?
This article includes a brief history of the law affecting the right
to publicity. Interestingly, the first time the term was explicitly
used was in 1953.
http://www.gseis.ucla.edu/iclp/rftb.html
Oh What a Tangled Web
This article discusses fan web sites in some legal detail, but many of
the issues raised could apply to your situation as well.
http://www.gseis.ucla.edu/iclp/manship1.htm
Right of Publicity
This article, written by an attorney who specializes in intellectual
property law, concludes with a list of the issues you can look at to
help determine to what extent the right of publicity would apply.
http://www.publaw.com/rightpriv.html
The Developing Right of Publicity
Another historical look at court decisions recognizing the right.
http://www.mbc.com/db30/cgi-bin/pubs/RJL-Developing_Right_of_Publicity.pdf
Limitations of "Right of Publicity"
This article is a bit out of date, but it clearly explains the issues
involved.
http://www.aar-online.org/RightPublicity.html
I hope this sufficiently answers your question without muddying the
waters too much.
Sincerely,
mvguy
Google search term: "right of publicity"
://www.google.com/search?q=%22right+of+publicity%22 |
,
0 Comments
)