Just a quick note based on the Second Circuit’s recent ruling in Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, where it determined that Warhol’s Prince series was not transformative and therefore was subject to copyright provisions in relation to the reference photograph Warhol used. The court went through a fair use analysis, and the case was primarily concerning copyright, but it is interesting to contrast this decision with the Comedy III case, which was primarily Right of Publicity-related. In Comedy III, the Three Stooges artwork was held to not be sufficiently transformative, and the court used Warhol’s Blue Marilyn as the example of a work that would, in contrast, and in the court’s estimation, be sufficiently transformative. I’ll let those motivated to seek more run their own searches rather than post links here, as there is no lack of content, analysis and discussion being offered on this recent ruling. I have not, as yet, seen reference to the contrast with the Comedy III case, so I thought it may be useful to note it here.
Actress Tara Reid apparently has filed a lawsuit seeking $100 million relating to merchandising of the Sharknado film franchise. Reportedly at issue are product categories such as branded beer and slot machines with her likeness on them, which according to her contract require her separate approval. From a distance, this looks like a contract dispute more than a Right of Publicity case, though certainly the Right of Publicity is implicated by the issues at hand. If her likeness is on the product, one hopes that the transformative test would not be twisted and stretched to attempt an argument that the image on the product is meant to be the character from the film, not the actress herself, that her likeness is transformed. But it wouldn’t be the first time a carefully tailored test gets twisted down the line.
Here is Forbes coverage of the lawsuit: https://www.forbes.com/sites/legalentertainment/2018/12/07/tara-reid-sues-sharknado-producers-for-100m/#26b5b9672c46
In ruling for the plaintiffs in Davis v. Electronic Arts earlier this week, the Ninth Circuit has given us the latest interpretation of the Transformative Use test. This ruling comes only a few months following a contrasting ruling in Noriega v. Activision, in which the Transformative Use defense led to a ruling in favor of the defendant.
The Activision case centered on inclusion of former Panamanian dictator Manuel Noriega in Call of Duty: Black Ops II. Former New York Mayor Rudy Giuliani served as co-counsel for Activision, and the following Hollywood Reporter article provides good insight as well as a link to the defense’s memo in support of its motion to strike Noriega’s complaint.
It is interesting to consider if the day might ever come when Rudy Giuliani might want to assert his own Right of Publicity in response to a commercial use of some kind.
In its Davis v. Electronic Arts ruling, the court looked to its prior ruling in Keller v. Electronic Arts, where the court also rejected the Transformative Use defense advanced by EA. The court in Davis v. Electronic Arts stated that the Madden video game “replicates players’ physical characteristics and allows users to manipulate them in the performance of the same activity for which they are known in real life – playing football for an NFL team.”
There are certainly considerable differences between the extent of use, purpose of use, and commercial aspects between the use of former NFL players in the Madden game and that of Noriega in Black Ops II, so in general, I applaud the Ninth Circuit’s rejection of the Transformative Use defense in its determination, and in not taking the usual “throw the baby out with the bath water” that too-often seems to accompany rulings concerning the Right of Publicity, as in the overreaching ruling in Indiana against the heir of John Dillinger in a case against EA.
That ruling led to my effort to amend Indiana’s Right of Publicity statute in 2011 and 2012, which was passed and successfully maintained the integrity of Indiana’s Right of Publicity statute:
Here is a link to the January 6, 2015 ruling in Davis v. Electronic Arts: