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Observations regarding New Hampshire’s Right of Publicity effort and Governor Lynch’s veto of SB 175

June 22, 2012 3 Comments »
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Within hours after delivering a presentation about the Right of Publicity and Celebrity Licensing at the annual Licensing Show in Las Vegas, I was contacted by WIBC 93.1 of Indianapolis seeking comment on the developments concerning the legislative effort to pass a statutory Right of Publicity in New Hampshire.  Specifically, I was informed about Governor John Lynch’s surprising veto of SB 175 after it had passed the New Hampshire House and Senate.  Here is a link to a brief summary and short audio segment of my full radio interview with WIBC:

The New Hampshire effort has been spearheaded by Matt Salinger, son of acclaimed author J.D. Salinger, who lived in New Hampshire in part because of the value New Hampshire places on individual rights and liberties.  Matt Salinger tells of how a photographer ambushed his father in the latter years of his life, manipulated the image, and turned it into a commercial product (t-shirts):  “A photographer literally jumped out of the bushes on top of him … then took this picture as my father was recoiling.” “My father looked terrified, looked angry, looked startled and looked a bit haunted. It’s a terrible photograph, but that wasn’t enough for this person who made these T-shirts. He then went in … and made his eyes bright red, and made his face yellow — just made him look more freakish and wild.”   Here’s a link to the full story:

Examples like this seem to make an easy case for passing a Right of Publicity statute in New Hampshire.  Here is a link to one version of the draft bill:  Unfortunately, here’s what Governor Lynch said in vetoing SB 175, from his June 12, 2012 press release:   “SB 175 would codify a New Hampshire citizen’s right to control and transfer to beneficiaries the commercial use of his or her identity for 70 years after death. Because I believe that this legislation is overly broad, would potentially have a chilling effect on legitimate journalistic and expressive works that are protected by the New Hampshire and United States constitutions, and would invite rather than diminish litigation over legitimate journalistic and expressive use of a person’s identity, I have decided to veto this bill.”  Here’s a link to his full veto message:

Governor Lynch missed an opportunity to make New Hampshire one of the growing number of states that provide statutory Right of Publicity recognition for its citizenry.  His statement indicates a lack of understanding of what the Right of Publicity seeks to accomplish and how it functions in practice.  While I appreciate that his time is limited and the Right of Publicity may seem like an esoteric, unfamiliar concept at first blush, I also discern in his statement a caving-in to the lobbying of the major industries opposing the Right of Publicity.

No matter how motivated, articulate, or justified the family of a deceased personality might be in seeking passage of a Right of Publicity statute, those who need the statute have a difficult time rivaling those who oppose it—in other words, the well-funded, coordinated, professional lobbying influences of those opposed to Right of Publicity legislation throughout the country.

Ironically, many of the Right of Publicity opponents can be quite aggressive in protecting their own intellectual property interests when threatened or infringed.  Both Federal copyright and trademark law have been amended many times to protect their interests, and their arguments against the Right of Publicity concerning First Amendment, creative expression and the like could equally have been waged against them when their interests were on the line.  One therefore might assume these entities would support increasing Right of Publicity recognition through statutory adoption, which would have the benefit of bringing greater consistency and more certainty in dealing with Right of Publicity matters.  Stronger intellectual property recognition should be welcomed, not opposed by these groups.

Alas, it does not play out that way because there are financial considerations in play.  As an example, movie studios certainly would like to be able to license clips from their respective movies, for example, to make consumer products and advertisements without having to bother with the Right of Publicity of the actors and actresses featured in those movies. The studios would benefit greatly by having complete control over those transactions, as well as to be able to capture the entire clearance budget for licensing and advertising uses.  The Right of Publicity, however, ensures that someone like Humphrey Bogart cannot be made a spokesperson for a high-profile tobacco company advertisement, using still images or a clip of Bogart smoking in a movie, without his heirs having a say in whether or not that advertisement will happen in the first place.  Very few people would deny that this situation demonstrates the need for Right of Publicity recognition.

Or what about the recent developments in hologram technology?  Tupac was resurrected and made to perform, with stunning realism, at the 2012 Coachella Festival.  I understand this performance was conducted with full licensing and permissions in place.  But without the Right of Publicity, what is to stop a new movie from being created in which Elvis or Steve McQueen is made to perform, or an adult-entertainment producer from creating new “expressive works” of Marilyn Monroe or Princess Diana?  In addition to demonstrating the imperative for Right of Publicity protection, I believe this technology may even demonstrate the dangers of sweeping statutory exemptions for entire mediums and categories of works.

Variety interviewed me just days ago on this topic.  Here’s a link to the June 22, 2012 Variety story:

Furthermore, the interests of those opposing the Right of Publicity are not nearly as threatened by Right of Publicity as they would have people believe.  On an individual basis, I’m proud to say that I have collaborated with various specific video game companies and movie studios in joint licensing programs concerning their projects, archival works, and the celebrity clients I have worked with over the years.   Creative works were not squelched, and commerce was not impeded.  For decades, the parties have co-existed in a relatively harmonious manner.

So I attribute most of my concerns to the manner by which lobbying takes place these days, which seems to be premised on a distressing degree of inaccuracy and fear-mongering, than to any particular business or entity.  I understand these techniques were out in full force in New Hampshire, with statements akin to “If this statute is passed, book reviews can no longer be written” or similarly disingenuous, unsupportable declarations designed to scare the people responsible for determining if SB 175 will be passed or not.

The inaccuracy of such arguments should expose their specious, biased nature and hurt the credibility of those making them.  It did in Indiana, for which I am thankful because we were able to get my bill through with the benefit of some good old-fashioned common sense.  Here’s a link to the recent Indiana statute:

It’s not like New Hampshire would be sailing into uncharted waters with the substance of the proposed Right of Publicity statute.  I see nothing unprecedented in the draft statute.  The materials circulated in support of SB 175 detail how New Hampshire has recognized a common law tort of “invasion of privacy by appropriation,” as in Remsburg v. Docusearch, Inc., 149 N.H. 148, 157, 816 A.2d 1001 (2003).  The substance of SB 175 was to clarify that this common law right is descendible or assignable through a will, trust, or other testamentary instrument or written contract, as so many other state statutes provide.

SB 175 is not seeking to create retroactively something that didn’t previously exist, or to bestow a gift upon the Salinger Family, as I understand was also asserted.  The rights already existed at common law, but with the benefit of a statute, potential plaintiffs, defendants, lawyers representing plaintiffs or defendants alike, and the judiciary, could have the benefit of guidance from the New Hampshire legislature as to the extent of recognition afforded in New Hampshire.  This is a desirable benefit across the board.

To those concerned about the First Amendment:  I’m happy to report that the First Amendment is alive in well in Indiana, California, Texas, Washington, Tennessee and the numerous other states that have already passed Right of Publicity legislation.  These states all have Right of Publicity statutes in place, and there has not been “a wave of litigation” or “a suppression of First Amendment liberties” as is so often predicted and promised by Right of Publicity opponents.

Virtually every area of the law is subject to potential abuse, but the law and those who work in the profession navigate these perils and serve to keep things on track.  Let’s not forget, the judiciary is very good about safeguarding the First Amendment and in making case-specific determinations when First Amendment concerns might legitimately trump the Right of Publicity.  I have monitored these matters for a long time, and there are very few instances where the First Amendment was in any real danger as a result of the Right of Publicity.  If a bad lawsuit is filed, there are many procedural and substantive protections in place for dealing with it.

I understand there is a session next week to review the Governor’s vetoes.  New Hampshire therefore still has an opportunity to not be left behind, and to pass some form of statutory Right of Publicity recognition.

The reality is, those opposing Right of Publicity legislation have an infinite number of ways to accomplish the objective of a bill, while those trying to pass it have only one route to success.  Indeed, it is easier to spoil a masterfully prepared dinner than it is to make it.  Advantage: opposition.

Much of what I see happening in New Hampshire mirrors what I experienced leading the effort to protect Indiana’s Right of Publicity statute earlier this year.  Most of the arguments in opposition to SB 175, and the efforts to insert unprecedented exemptions for video games, or the antiquated notion of a registry system, came up when I was working on Indiana’s Right of Publicity bill.

The difference is, Governor Mitch Daniels signed Indiana’s Right of Publicity bill into law, which goes into effect in just a few weeks.  I’m still rooting for the great State of New Hampshire and its capable leaders to do the right thing and pass legislation that provides a statutory Right of Publicity.

After all, isn’t it more consistent with New Hampshire’s ideals and heritage of valuing individual rights to pass a meaningful Right of Publicity statute—thereby ensuring control of commercial use of its native sons and daughters— rather than catering to the lobbying of massive industries and corporate entities that want to commercialize these Rights of Publicity without encumbrance?

I think the answer is clear.

3 thoughts on “Observations regarding New Hampshire’s Right of Publicity effort and Governor Lynch’s veto of SB 175

  1. Eric Goldman says:

    Whoa, this post is quite a screed. Really? You lost me starting with the point where you pitched the legislative battles as a noble reclusive family vs. “the special interests and lobbying efforts of the major industries opposing the Right of Publicity.” Spoken like a true advocate. Of course it’s inconceivable that anyone (even, say, a lawyer who regularly handles publicity rights matters) would advocate for a publicity rights statute because of their financial interests. C’mon. And to say that “things are generally on track” with abusive publicity rights litigation is absolutely incredible in light of the torrent of privacy lawsuits asserting publicity rights claims against technology companies. (Check out the Stayart litigation if you need an example. I have many others.). This post really drove a wedge in my relationship with the blog as a reader. Eric.

  2. jfaber says:

    Hi, Eric. First. thanks for reading. I truly appreciate it. I’m carefully considering the points you’ve made because I’m willing to consider alternate views, to clarify, or even to revise if need be. I stand by what I said here, but if a general statement like “things basically in check” is objectionable to you, I concede that the statement is relative. That said, if a person files a claim that is without merit, there are considerable perils awaiting that claimant. Similarly, in response to the predictions of a wave of litigation, perhaps I could have been more specific. Let me put it this way: Indiana passed its original law in 1994. There has been only a handful of Right of Publicity cases filed in the last 18 years since. So, as I was testifying in support of my Indiana bill, I heard this same concern voiced, to which the reply is “if the statute would automatically lead to a deluge of lawsuits, that would have already been happening. And it hasn’t. Not even close.” So if that needs clarification with respect to, say, California, I would be willing to back off in that regard.

    I do not deny that Right of Publicity recognition is helpful to my clients, and I make no apology for that. That does not discredit the points I am making. I will not benefit in any way I know of if New Hampshire passes a Right of Publicity statute. I trust you would not say that the Right of Publicity should be denied any kind of advocate? There are precious few. From a legislation standpoint, having just lived through it in Indiana with my own bill, and participating with SAG on various other state legislative efforts, I have witnessed first-hand that the playing field is far from level. Every state matters to the corporations and industries involved, so they lobby in every state where the Right of Publicity comes up. Contrast that to any given Right of Publicity owner. If that person is situated in state A, he or she is not going to fund lobbyists in states B, C or D.

    I truly am concerned with and strive towards objectivity with respect to Right of Publicity matters, because it would not do my business, my teaching, my writing, or the doctrine any good not to recognize situations that require balance. To conclude with one of your first points, I was not intending to describe the situation in New Hampshire as simply that of a “noble reclusive family” against special interests, but that’s probably not too far from the truth (though I have never had contact with the Salinger family of any kind so I can neither confirm nor deny their nobility). I based much of what is shared on first-hand experiences with the legislative process, which was largely defined by professional lobbyists employing tactics that were clearly designed to derail the process. I am therefore a little surprised that this post was quite so objectionable to you. As “screeds” go, I feel each point here was relevant and contributed to the post. It is admittedly a bit long, so if that renders it a screed, I can live with that. I almost never write in detail on this site, but I believe it is well within my right and professional experience to do so on this topic.

    I truly appreciate your interest in this site. Perhaps we can agree to disagree.

  3. jfaber says:

    It often seems en vogue to be anti-right of publicity amongst the commentator crowd, many of whom have little experience actually working with rightsowners. Supporting the right of publicity doctrine overall remains an unpopular position in 2020. Which confirms the importance of doing so. No one asked me to support the New Hampshire legislation based on compensation or benefit. My clients benefit from more consistent right of publicity recognition, sure, but it has made no practical difference to me that it did not pass. Yes, there are overreaching right of publicity claims out there. That does not condemn the importance of statutory recognition. What area of law is not subject to abuse? Does overreach or abuse only come from one direction? What if the absence of a statute in a given jurisdiction leads to abuse?

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