At a recent Napa Valley ABA panel, the argument reportedly was made that a wave of lawsuits filed against media companies is making it harder for producers to make documentaries, docudramas and sports features. I’m reminded of the coverage after Comedy III or the Tiger Woods case against Jireh, when claims were made that “artists can’t create art anymore.” Gotta love hyperbole.
Last time I checked, a few lawsuits doesn’t constitute a wave. And it sure doesn’t seem like the documentary, docudrama and sports feature categories are struggling. I’d wager that more such words are being created now than ever before.
The pending suit by Mohammad Ali’s rights owners against Fox for a Super Bowl spot, and a separate claim by Olivia de Havilland are probably the main examples of this “trend” or “wave.” Why don’t we speak of the trend or wave of media giants and advertisers trying to get for free rights that should be licensed? Sure, documentaries, docudramas, and whatever “sports features” are may present specific cases, but it isn’t too radical of an idea to suggest that each situation may present unique facts or characteristics that must be considered. Bad lawsuits will be filed, in all areas of the law. Abuses will happen by billion-dollar corporations or industries, of all manner of intellectual property rights. It happens, and we have laws and a system for addressing them.
Let’s try not to get carried away. My experience is those making the most dire predictions of a dystopian world where the right of publicity has consume the First Amendment rights are usually those aligned with the deep pockets that benefit most from such misinformation, or from those with precious little experience working with and representing rights owners.
I want to take a moment to thank Wes Anson of Consor, who quoted me at length in his new publication for the ABA entitled Right of Publicity: Analysis, Valuation, and the Law. I haven’t had time to read the book carefully yet, but it appears to be well done. I’m sure it will be a useful resource to many.
I did notice that the section on Indiana’s current Right of Publicity statute is not quite on point or up to date. In 2012, I secured passage of a critical piece of legislation that solidified Indiana’s Right of Publicity position in the wake of a problematic judicial decision. Here’s a link to more information on that development: http://rightofpublicity.com/faber-secures-passage-of-indiana-right-of-publicity-statute