One has to marvel at the arguments being attempted in opposition to New York’s Assembly Bill A.8155B. Here is a link to the bill: New York Assembly Bill A.8155B
In coverage of the bill (in the Hollywood Reporter coverage, link below), the MPAA says one of the fatal problems with the bill is that it does not have limitations for First Amendment purposes. Let’s shine the white-hot light of truth on such misinformation with a quick look at S.51 of the bill:
§ 51. Action for injunction and for damages. ... 50 2. Right of publicity exceptions. For purposes of the right of public- 51 ity, consent for use of another individual's persona shall not be 52 required, except as otherwise provided in subdivisions three and four of 53 this section, when used in connection with the following: 54 (a) news, public affairs or sports broadcast, including the promotion 55 of and advertising for a public affairs or sports broadcast, an account 56 of public interest or a political campaign;
A. 8155--B 5 1 (b) in: 2 (i) a play, book, magazine, newspaper, musical composition, visual 3 work, work of art, audiovisual work, radio or television program if it 4 is fictional or nonfictional entertainment, or a dramatic, literary or 5 musical work; 6 (ii) a work of political, public interest or newsworthy value includ- 7 ing a comment, criticism, parody, satire or a transformative creation of 8 a work of authorship; or 9 (iii) an advertisement or commercial announcement for any of the works 10 described in paragraph (a) of this subdivision or this paragraph; or 11 (c) fundraising purposes by not-for-profit radio and television 12 stations licensed by the federal communications commission of the United 13 States, or by not-for-profit advocacy organizations if the use is for 14 commentary or criticism; 15 (d) use of the right of publicity of a deceased individual where the 16 licensee or successor in interest has failed to register and post a 17 claim of right under section fifty-h of this article, with the exception 18 of the safe harbor period listed in subdivision seven of section fifty-h 19 of this article, until such time as a claim of right has been registered 20 and posted as required under such section.
Accuracy appears to be the first casualty in the fight against Right of Publicity recognition. Claiming the First Amendment will be jeopardized and creative works stifled if the legislation is passed is such a popular refrain designed to make every legislator afraid to go against something as fundamental as the First Amendment, that it will be repeated even when the statute specifically contains exactly what it is alleged to lack.
Another observation is the attempt to characterize New York’s bill as something so revolutionary, something so dangerous, that the bill simply must be shelved. New York’s legislature has been in almost a permanent state of considering this legislation. Many other states have Right of Publicity recognition firmly in place, and so far, I’m happy to report the First Amendment, creative works, commerce, and freedom in general have not withered in those jurisdictions. We might have heard about it if these popular, dire predictions actually ever occurred.
Another quick observation relates to the provisions in the bill addressing deep fake uses and digital recreation of a person. On this point, I might just sit back and listen as the lobbyists attempt to argue against a baseline provision addressing the extreme abuses possible by way of deep fake uses and digital recreation.
Lastly, in the Hollywood Reporter’s coverage, it is suggested that A.8155B isn’t really needed because the Lanham Act, false endorsement and privacy rights already provide adequate recourse. They don’t. That statement would only hold true for the small number of people so famous that they can actually support a trademark claim. Suggesting that the Lanham Act and privacy rights are a sufficient substitute for the Right of Publicity is simply inaccurate, and this point ought to be beyond debate. The article says it is not attempting to take offer competing interpretations and that both sides are probably guilty of overreaching, but then comments only on supporters of the bill, with no commentary or insight on how the studios and opponents to the bill may also be overreaching. Here is the link: Hollywood Reporter coverage on New York’s Assembly Bill A.8155B
In the ugliness of lobbying, it is apparent that being right, or even knowing what the legislation actually says, is not really an important detail.
Two more rulings involving video games came down last week, both from the Ninth Circuit Court of Appeals.
The July 31, 2013 ruling in Jim Brown v. Electronic Arts http://www.edwardswildman.com/files/upload/BrownvEA.PDF determined that Jim Brown’s inclusion in the Madden NFL video game was not an infringement of the Lanham Act §43(a). The court used the now famously misapplied Rogers test to determine that video games rise to the same level as literary works and thus are entitled to equal First Amendment protection. Once committed to the wrong test, the Court held that under the Rogers test Jim Brown’s likeness was artistically relevant to the game, also noting that there were no facts showing that his inclusion misled consumers about his involvement with the game.
The July 31, 2013 Brown ruling is only in relation to the Lanham Act claim. The true nature of Jim Brown’s lawsuit is primarily of a Right of Publicity nature (though the Rogers test would have been the wrong test to apply even if the ruling had been on a Right of Publicity claim). The Court says in a footnote: “We emphasize that this appeal relates only to Brown’s Lanham Act claim. Were the state causes of action before us, our analysis may be different and a different outcome may obtain.”
This point is reinforced by a ruling in another case on the same day, by the same judge, on similar facts but different claims. Specifically, consider the July 31, 2013 ruling by in Sam Keller v. EA and NCAA, No. 10-15387, http://www.edwardswildman.com/files/upload/KellervEA.PDF Here, the Right of Publicity was the claim being considered and the Court distinguished the claims from those in the Jim Brown case. The Court applied the transformative use test, providing a better fit in most Right of Publicity situations than the Rogers test, which was created for application to titles. The ruling was in favor of Plaintiff Sam Keller of course because the objective was to recreate Keller as accurately as possible–the antithesis of a transformative use.
Perhaps we have not seen the last of Jim Brown’s claim.