Chilling free speech

[The Straight Story]

CHILLING FREE SPEECH

Episodes like these make some defense lawyers cringe. Kelli Sager, chair of the media practice group at Davis Wright Tremaine in Los Angeles, is currently defending video game publisher Electronic Arts against former NCAA athletes claiming commercial use of their images in sporting events. Sager estimates that for every case that’s filed, there are dozens more claims made. “What we’re seeing in court is just the tip of the iceberg,” she says.

Some worry that potential claims may hurt innovation in the media marketplace and chill free speech. The primary concern is whether traditional handicaps that have prevented public figures from suing the media are withering away thanks to generous publicity right protections.

Nancy Wolff, a partner at Cowan, DeBaets, Abrahams & Sheppard in New York City, says she’s concerned with new laws debated in states like New York that confer broad publicity rights to individuals. She wonders how it may affect traditional publishers who wish to adapt to the digital age.

“A lot of our law was written in the time of print newspapers and documentary films,” Wolff says. “But let’s say a digital newspaper wants to make an information game for the iPad full of clips of newsworthy people. Or let’s say a news website starts embedding advertising. If publications have to start clearing the rights of every recognizable person, I’m sure we’ll never see a lot of very innovative news products.”

Paul Levy, an attorney with the Public Citizen Litigation Group in Washington, D.C., agrees and says he’s noticed a bunch of recently filed publicity rights lawsuits that seem to be “defamation claims in disguise.” As an example, he cites the case of the Chicago-based investment banking firm Houlihan Smith & Co., which got a temporary restraining order in May to muzzle a website that hosted critical commentary of its business. The plaintiff argued that the content was infringing the publicity rights of its employees. However, the court later denied an injunction and the website moved for summary judgment. Houlihan Smith then dismissed its complaint.

Because publicity rights guard against the misappropriation of someone’s “likeness,” an amorphous concept to be sure, plaintiffs can potentially stop offensive speech even in fiction, as long as they find something contained within that’s identifiable.

http://www.abajournal.com/magazine/article/whats_in_a_name/

The Real Value of Being Famous

We've been reporting more and more in recent months on "rights of publicity" disputes and how a growing number of the famous and not-so-famous are latching onto the claim to pursue legal action against alleged identity appropriators.

Publicity rights is not only one of the trendiest areas of intellectual property law and a growing practice area in its own right, but some believe the legal claim to be one of the biggest threats to free speech that few people know about.

For more background on the topic, check out our feature in the ABA Journal this month, "What's in a Name?" covering, among other things, the real value of being famous in an increasingly digital age.

It'll help make sense of this scene from "30 Rock," featuring a conversation between Liz Lemon (Tina Fey) and her production staffer Pete (Scott Adsit):

Pete: Liz, quick question about the Johnny Appleseed sketch. Does it hurt it if we can’t call him Johnny Appleseed?

Liz: Yes! Why?

Pete: Well, Johnny Appleseed was a real guy and his descendants are very litigious (both roll eyes). So, here is a list of the names that legal says we can use: Jerry Bananaseed…and…nothing else.

http://www.hollywoodreporter.com/blogs/thr-esq/real-value-being-famous-32113