Who Owns the Copyright in Your Life Story? Nobody.
There is, in my mind, a rebuttable presumption that earnest Hollywood movies are the equivalent of eating overcooked vegetables: you only watch them because they’re good for you, and most of the vitamins have been leached out. Thus, I’ve never watched The Good Lie, an earnest Hollywood movie about the “Lost Boys of Sudan,” who have a remarkable story no matter how you tell it.
The Good Lie gets my attention because it is the subject of an ambitious and astounding lawsuit filed last week in the Northern District of Georgia, which has a fascinating, if misguided, copyright angle. You can read the lengthy (but compelling) Complaint here. The plaintiffs are dozens of Lost Boys who had been interviewed by the early producers of the movie (whom we’re just going to call the screenwriters. Everyone allegedly knew that the interviews’ purpose was to help write a script, and everyone expected a movie to eventually be produced.
The Lost Boys were savvy enough not to give their life stories away for free, but the screenwriters didn’t have a lot of money. The real money would come later, but only after the script was written,…
Did the Ninth Circuit Contradict Itself?
A few days ago, we got two opinions handed down by the same court, written by the same judge, on essentially the same subject, involving the same defendant that reach seemingly contradictory results. On July 31, the Ninth Circuit handed down two decisions about the use of likenesses in video games: Brown v. Electronic Arts, which went defendant’s way, and Keller v. Electronic Arts, which went the plaintiffs’ way.
In both cases, football players sued video-game maker EA for using their likenesses in EA’s football video games. Jim Brown, perhaps the greatest football player ever*, objected to the use of his likeness in EA’s Madden NFL**. In Keller, several former college football players, none of whom will ever be considered one of the greatest of all time, objected to the use of their likenesses in EA’s NCAA Football.
* Before even my time, though.
** EA licenses with the NFL and NFL Players Association for the rights to use players’ likenesses, but Brown has been far too long retired to be covered by those licenses.
These guys might be suing next, when EA comes out with Old-Timey College…
Divided Third Circuit Reverses in EA v. Hart
Way back in September 2011, I blogged about Hart v. EA, mostly as an introduction to publicity rights. Hart was a former NCAA quarterback (and former teammate of Ray Rice at Rutgers) whose image (like many other former NCAA players’) is used in EA’s NCAA Football. The NCAA (whose reputation has not gotten any better since then) licenses collegiate athletes’ images and physical statistics to EA, but at the same time forbids collegiate athletes from profiting from their own images.* When you play NCAA Football, you can actually play a simulacrum of Hart—his image and certain physical and football statistics. If you’re a Rutgers alumnus, you might be pretty excited to play Rutgers’ powerful 2006 team (with Hart as quarterback and Rice as tailback) and relive the high-water-mark of Rutgers football.
* I’ll make no secret of my disgust at this state of affairs. Universities are able to profit mightily from young men to risk their health and long-term prospects to play a game they love. A university education is a very valuable thing, and most student-athletes get a great deal, but it’s on the backs of the football players, who…
July 26, 2012 | Category: Blog | Tags: fair use, free speech, photography, right of publicity | Comments: 0
Rick is an experienced Nashville intellectual-property litigator and an erstwhile part-time professor at Vanderbilt University Law School whose writing and teaching focuses on copyright issues but whose law practice involves a wide variety of IP-related disputes.
But it’s Sad, Sad News for Momma Partridge
Even when I was a little kid, I didn’t like the Partridge Family. It came on late in the afternoon (in syndication, of course), after some Looney Tunes-type cartoons. It always seemed to start promisingly, with a little cartoon—featuring cute partridges hatching—and catchy song* for the opening credits. Then it went immediately downhill after that, mostly because it wasn’t a cartoon. Also, I was envious that the littlest kids got to live such a cool life that didn’t involve going to school. And I positively hated Danny.** Honestly, I preferred the Brady Bunch, if I had to endure a live-action sit-com, which is settling a low, low bar.
* Whoa, I just listened to the song again. I should rephrase that. It was catchy for a six-year-old kid in 1974, I guess.
** Yeah, I get that Susan Dey was pretty. But c’mon I was six. Also, at that point in her acting career (she was previously a model), she really couldn’t act.
I bring this all up because the actress who played Momma Partridge, Shirley Jones, recently lost an appeal on a claim that her likeness was misappropriated by an…
Free Speech Sacks Publicity Rights (but Was it Offside?)
A few weekends ago I blogged about publicity rights in connection with a Vampire Weekend album cover. One of my main points was that publicity rights are a lot like copyright, except that it’s a right held by the subject of a work, rather than by the work’s author. Thus, when a work has a living (or in some states, dead) person as its subject, there can be two rights to worry about: copyright and publicity. Publicity is the right to control representations of yourself; copyright is the right to control representations (OK, “expressions”) you make.
Team Publicity Rights vs. Team Free Speech
Publicity rights make intuitive sense. If you’re a celebrity, even a local or minor one, people shouldn’t be able to use your likeness to make a buck. That’s a market for you to control. To this, we add a kind privacy or dignity sheen that arises (in my opinion) from the general feeling of discomfort we get when our likeness is shown to people outside our normal circle of family and acquaintances. Intuitively, the scope of this privacy right changes depending on the intimacy of the portrayal: one can imagine…