Major developments are taking place on the Right of Publicity legislation front. Unfortunately, they are not favorable to those who support or rely on recognition of the Right of Publicity. As previously reported here, Michigan, New York and North Carolina are all presently considering Right of Publicity legislation. There are some unprecedented provisions in the Michigan and New York bills which have the potential to render passage of a Right of Publicity law in these states a Pyrrhic victory, at best.
It is apparent that the unified, well-funded business interests seeking to taper back Right of Publicity recognition are gaining more traction in shaping the law than the handful of individual voices who will be affected by these laws. It would be nice to see the players associations of the various professional sports leagues voice objection to these developments. If these bills are passed with such one-sided provisions, it will detrimentally impact the past, present and future athletes that the players associations ostensibly exist to serve.
What exactly are those provisions? Well, as you can see for yourself by visiting the links to the respective bills (included below), there is now an unqualified exemption for video games in Michigan’s bill. Prior versions of the bill sought some kind of limitation, such as use in a video game that is incidental or fleeting. No such limitations are included now, rendering the obviously commercial product of video games on the same level as books and newspapers.
Not to be outdone, New York’s law has the same outright exemption for video games. But it goes further, and also provides more unprecedented exemptions for greeting cards, games that use multiple personalities, calendars, and tee shirts.
I question whether a judge can be expected to differentiate between a short sleeve shirt, baby tee, jersey length tee, embroidered tee, or designer shirts, for example, so it seems likely that tee shirts would encompass all of the above. And since there can’t really be a legal distinction based on sleeve length or whether an article of clothing has a hood on it, it follows that it would also include sweatshirts, team jerseys, sweaters, jackets, and other garments. While the bill provides that the exemption does not apply if the person’s name or image is on the label of the garment, that is rare in the universe of licensing personalities. Typically, the use hinges on the name and image of the personality appearing prominently on the front of the garment.
The categories of apparel, greeting cards, games, calendars and video games are some of the most important in the licensing industry. No doubt those companies that create and sell products using famous people’s names and images would love the ability to commercialize those valuable assets without the burden of paying for those rights, or seeking approval in the event that the famous individual or his or her heirs would prefer not to be involved in the product at all. It isn’t all about money, after all.
My experience dictates that retired or deceased athletes will be especially susceptible to the impact of these exemptions. Even if such parties still have Lanham Act claims available, pursuit of an infringement on trademark grounds is different from Right of Publicity grounds. Those who argue that the Lanham Act claims alone should be sufficient are essentially telling the carpenter to use the side of a wrench to pound in a nail, while walking off with the carpenter’s hammer. The Right of Publicity is clearly the right tool for this job.
These one-sided provisions appear to be popping up in every state that is presently considering a Right of Publicity bill. Yet, the last twelve to eighteen months have brought litigation by Jim Brown, various NCAA athletes, and not one but two class action suits by former NFL players against Madden Football concerning alleged abuses of these individuals’ Rights of Publicity. Even in the absence of express exemptions for video games, it is apparent that those being included in video games without permission feel that significant abuses are already occurring. One can not expect such instances to diminish in the wake of a law shielding video games altogether.
If you are in position to voice opposition to these sweeping, unprecedented and one-sided exemptions, please send your written opposition to the appropriate parties backing these bills. Similarly, if you have access to those who might be directly affected by these bills, please arrange for them to voice their opposition.
If these bills were to become law, it would be worse than merely a Pyrrhic victory; it would be a loss in disguise as victory.
Here is a link to the Michigan and New York Right of Publicity bills:
Michigan House Bill 5964, sponsored by Representative Byrnes: http://052.housedems.com/
New York S06790, Senate Majority Leader, John Sampson: http://www.nysenate.gov/senator/john-l-sampson/contact
Summary of the Bill: http://assembly.state.ny.us/leg/?bn=S06790&sh=t
Text of the Bill: http://assembly.state.ny.us/leg/?default_fld=&bn=S06790%09%09&Text=Y