Arnold Schwarzenegger is threatening to sue a company that is distributing Arnold Schwarzenegger bobble-heads. Schwarzenegger’s claim is not unprecedented, even among political leaders: The Martin Luther King, Jr. estate successfully blocked the distribution of busts of King; I discuss the case in my Freedom of Speech and the Right of Publicity article.
But as I argue in this article, Schwarzenegger ought to lose, even though under current law he has a good chance of winning. The bobble-heads are hardly incisive political commentary, but they do send a message that Schwarzenegger ought not be taken too seriously. The message is ambiguous and contestable, as it is in much art (consider Andy Warhol’s Mao print or his Marilyn Monroes print). But, as with other art, the expression should still be constitutionally protected.
And, unlike with copyright law, there’s very little justification for allowing the subjects of such works a right to block them: There’s no reason to think that the right of publicity materially increases people’s incentives to become celebrities, much less political leaders. Copyright law restricts expression in order to promote more expression and more creativity; moreover, reading the First Amendment as preempting copyright law would mean that the Bill of Rights largely eviscerates a constitutional provision (the Copyright and Patent Clause) that was passed more or less contemporaneously. Right of publicity law restricts the use of people’s likenesses and names without promoting more expression and more creativity, and it lacks this specific constitutional hook.
This litigation also illustrates, I think, the weakness of the “transformativeness” test that the California Supreme Court set forth in Comedy III Productions v. Saderup (again, discussed in my article). “Transformative” uses, the court held, are protected by the First Amendment, and the court gave Warhol’s Mao print as a paradigm example of a transformative use, even though it just depicts Mao: “Through distortion and the careful manipulation of context, Warhol was able to convey a message that went beyond the commercial exploitation of celebrity images and became a form of ironic social comment on the dehumanization of celebrity itself.” On the other hand, nontransformative uses, such as Saderup’s charcoal drawings of the Three Stooges (in which the California Supreme Court Justices could “discern no significant transformative or creative contribution”), are unprotected by the First Amendment, and may lead to a right of publicity lawsuit.
But which category does the bobblehead fall into? Is there as much “distortion and careful manipulation of context” in the bobblehead medium as in the Mao print? How do you figure that out in any objective way? Poll art critics?
I think the answer should be simple (again, see the article for more details): Prints and sculptures (whether in stone or in plastic) should be as constitutionally protected as movies and books, and people — especially political leaders, but also others — shouldn’t be able to block others from producing such items any more than they can block others from producing parodies, jokes, biographies, or news stories. But, as I mentioned above, Schwarzenegger’s claim is hardly unprecedented under current law, and may even be a winner. I don’t fault him, but I do fault many courts’ willingness to let the right of publicity trump the First Amendment.
Thanks to Shannon Maders for the pointer.
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