Narrowing “Publicity Rights”

I’ve written before about the burgeoning trade in “publicity rights,” which has become one of the sillier backwaters of the already-murky shoals of intellectual monopolization law. What started as a straightforward proposition – a commercial enterprise can’t co-opt a celebrity’s economic value or identity to sell a product – has morphed into all sorts of attempts to censor free expression, creativity, and reporting.

So I was happy to see yesterday that the Ninth Circuit finally decided the “Hurt Locker” case, in the process drawing a finer point on what is – and isn’t – a valid publicity rights claim.

What states a valid claim?

[S]peech which either appropriates the economic value of a performance or persona or seeks to capitalize off a celebrity’s image in commercial advertisements.

What doesn’t?  Pretty much ANY action related to non-commercial speech:

In sum, The Hurt Locker is speech that is fully protected by the First Amendment, which safeguards the storytellers and artists who take the raw materials of life—including the stories of real individuals, ordinary or extraordinary—and transform them into art, be it articles, books, movies, or plays. If California’s right of publicity law applies in this case, it is simply a content-based speech restriction. As such, it is presumptively unconstitutional, and cannot stand unless [the plaintiff] can show a compelling state interest in preventing the defendants’ speech.

But wait, you say – “The Hurt Locker” was made for a commercial purpose; surely it is commercial speech?

No. Not at all.  While the 9th Circuit didn’t even see the need to address this point, I will address it again: just because something is sold for commercial gain, or produced by a commercial enterprise, does not make it commercial speech. 1 Commercial speech is adverting speech. It’s speech proposing a transaction. My primer on the commercial speech doctrine has more info, but in any event: kudos to the Ninth Circuit for repudiating yet another publicity rights-based effort to compromise free expression.

Notes:

  1. If you don’t believe me, there is a freaking huge stack of cases you can read, starting with New York Times v. Sullivan, 376 U.S. 254, 266 (1964).

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