Right of publicity statute

  1. Read the Florida Right of Publicity statute carefully.
  2. Which of the following are protected from unauthorized commercial or advertising uses?
    1. A drawing of a celebrity.
    2. A photograph of Professor Nathenson.
    3. A drawing of Pinocchio.
    4. George Clooney’s voice.
    5. Scarlett Johansson’s signature.
    6. The Coca-Cola logo.
    7. The use of the phrase “That’s so hot”
  3. Who would have right of publicity rights to a textual reference to the character Vito Corleone from The Godfather that is used in an advertisement without authorization?
    1. The author of the book Mario Puzo.
    2. The owners of the films.
    3. The actor Marlon Brando who played elderly Corleone in Godfather I.
    4. Robert DeNiro who played young Corleone in Godfather II.
    5. Nobody.
  4. Who would have right of publicity rights to a photograph of the character Vito Corleone as portrayed by the actor Marlon Brando from Godfather I that is used in an advertisement without authorization? Same choices as question 3 above.
  5. Suppose somebody takes a photo of the celebrity Jerky Jerkeson and uses it in an advertising campaign to save whales. Jerkeson is angry that the photo was used without authorization. Surprisingly, the advertising campaign improves Jerkeson’s reputation and as a result, he is asked to appear in many films and he makes a lot of money. Does Jerkeson have a claim under the statute? What kind of damages might he obtain?
  6. Channel 8 News runs a story about Jerky Jerkeson, which includes mention of his name and uses stock photographs of Jerkeson. The story reports that Jerkeson likes to eat whales.
  7. Channel 8 News runs an ad for the news story from question 6 during the afternoon. It uses a photograph of Jerky Jerkeson and says “Shocking news about Jerky Jerkesen! Film at 11!”
  8. Professor Nathenson is at a Cheap Trick rock concert to celebrate the band’s entry in the Rock ‘N’ Roll Hall of Fame. While at the concert, a photographer takes pictures of the crowd, which is filled with graying and overweight Baby Boomers. The photograph is later used by Jonston & Jonston Inc. in an advertisement for a bone-loss supplement for elderly people called BONE-FREE! Professor Nathenson can be seen in the photo but his name is not mentioned in the ad.
  9. Same facts as # 8 but further assume that Jonston & Jonston posts the advertisement to its wall on Facebook. On Facebook, somebody adds a comment to the posting saying “Hey, that’s Professor Nathenson in that ad! I didn’t know he was old!”
  10. Jonston & Jonston uses a photograph of FDR (who died towards the end of the Second World War). The ad says “FDR won the war for us. Now you can win the war against bone loss! Buy BONE-FREE!”

 White v. Samsung

  1. The opinion you are reading is not the actual court decision. Instead, in an earlier opinion, a 3-judge panel of the Ninth Circuit held in favor of Vanna White. The defendant Samsung moved for rehearing by the panel or for rehearing by the Ninth Circuit en banc.
    1. En banc rehearing is a rehearing that includes not just the three judges on the original panel but also any active, nonrecused judges on the appellate court. (There are further complications of en banc rehearing in the Ninth Circuit that I will not get into here).
    2. Simply put, Samsung asked the Ninth Circuit for a “re-do” and it refused. The opinion you are reading is from Judge Kozinski’s dissent from the denial of rehearing en banc.
  2. Explain what Kozinski means when he says Vanna White wants the right to prevent advertisers from “reminding” the public of celebrities.
  3. In paragraphs 2 and 3, Judge Kozinski says “reducing too much to private property can be bad medicine.” Explain what he means using examples from our readings this week.
  4. In paragraph 12, Kozinski says that “Intellectual property rights aren’t free: They’re imposed at the expense of future creators and of the public at large.” Explain what he means using examples from our readings this week.
  5. In paragraph 15, Kozinski asks “Should White have the exclusive right to something as broad and amorphous as her “identity”? Why does he use the word “should” rather than “does”? What is the difference between and “ought” and an “is”? Is the distinction important?
  6. In paragraph 21, Judge Kozinski argues that the “dormant Commerce Clause” prevents state IP laws from prejudicing other states’ interests. Should IP laws be federal and uniform? Or are there benefits in allowing states to experiment with different laws even if that creates some disuniformity?
  7. In paragraph 31, Judge Kozinski calls the Ninth Circuit the “Court of Appeals for the Hollywood Circuit.” Why does he say this? Go online and find out which states fall within the Ninth Circuit. Are there reasons to be concerned that Ninth Circuit law regarding celebrities might have an impact far beyond the Ninth Circuit?