Monday, June 03, 2013

"Right of Publicity" still leaves a dangerous gray area for media novices

New authors or video producers may find themselves bemused by an arcane legal tort called :the right of publicity.  That generally means that a celebrity has the right to be compensated for endorsing products or for the use of his name or reputation for commercial advantage.  This is weighed against free speech rights, which can include commercial, for-profit speech by major movie studios.  For example. Columbia Pictures didn’t need permission from Mark Zuckerberg to make a fictitious movie about his role in founding Facebook (“The Social Network”), although it would have to walk a road to avoid legal defamation. 
Adam Liptak takes up the gray area in the article on p. 4 of the New York Times Sunday Business on June 2, 2013, the title being “When it may not pay to be famous”, link here. The case involves a games manufacturer. Electronic Arts, and football player Ryan Hart (Rutgers) in a video game called NCAA Football.  The Third Circuit in Philadelphia ruled for the plaintiff (precedential opinion text here), saying that he may pursue a right of publicity claim, and that his persona was not disguised enough.  Reuters has a story  here, and mentions another case about University of Arizona quarterback Sam Keller (see previous posting Nov. 16, 2010 about this case).  

It does seem that in the age of "self-made-manship" on the Web or social media, that the whole meaning of "celebrity" in the law could be up for more grabs.  
All of this reminds me, that in the summer of 1955, a few of us kids had a “fantasy baseball” league and actually handprinted a little newsletter of the results of our games. (The St. Louis Cardinals and Baltimore Orioles won the respective pennants; the Washington Senators were as bad in fantasy as they were in reality that year, one of their worst in history).  Legally, could we have gotten in trouble (at least in theory) for the use of celebrity names (like Mickey Mantle, Ted Williams, Stan the Man Musial, etc  -- and there were Roy Sievers, Jim Lemmon, Eddie Yost, and Camilio Pascual, too).  I doubt it.  But in today’s Internet world, the possible legal conflicts that could come from fantasy for profit become apparent  (I see tweets about fantasy sports from Ashton Kutcher sometimes).  

In 1958. The neighborhood kids had another kind of “league”, where we played a version of backyard softball with rules made for one-man “teams”.  Softball became an individual sport.  The idea was to hit the ball into the exactly the right place – but that’s true in real baseball, too.  (The Nats lost the final game to St. Louis in 2012 on a ground ball slapped in the right place to get through the infield.)  The final scores were pretty reasonable – often they were low (“3-2” was common). 

Oh, yes, the current Nationals need Bryce Harper back.  He’s made baseball a one-man team sport.  Keep your eyes peeled on Ted’s Bulletin restaurant in Washington’s 8-th Street corridor near Nats Park.  

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