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Why Missouri Right of Publicity Law Matters:

Commenter agog writes, apropos the Tony Twist right of publicity case,

So, if you're an artist here's another reason not to live in Missouri. Terrible decision.

If only the decision were that limited! Unfortunately, it affects writers, filmmakers, and other artists throughout the country (and throughout the world, if their work is distributed in the U.S.).

The dominant U.S. choice-of-law rule is that right of publicity cases are decided using the law of the jurisdiction in which the plaintiff lives (or in which he was living when he died). That means that if John Ashcroft moves back to Missouri, someone writes a novel in which one of the characters is named John Ashcroft, and Ashcroft sues -- even outside Missouri -- most courts will apply Missouri law. Ashcroft might therefore win if the jury decides that the novel/movie/song used his name primarily for "commercial" purposes rather than "expressive" or "artistic" purposes.

Even if this weren't so, and Ashcroft had to sue in Missouri court, he could still probably get jurisdiction over the defendants, even if they had never set foot in Missouri. He could certainly get jurisdiction over the nationwide media organizations that publish and distribute the work. So Missouri law would affect what commercially distributed books, films, or other works anyone, whether in Missouri or not, can create.

Related Posts (on one page):

  1. Why Missouri Right of Publicity Law Matters:
  2. The Right of Publicity, the First Amendment, Comic Books, and Hockey Players:
($):
On a related topic, Eugene, have you seen the new Alltel commercial that uses imposter characters for Sprint, Cingular, T-mobile and Verizon. I was wondering why none of these companies (especially Cingular) have enjoined Alltel from displaying these Commercials. In the latest commercial the Sprint guy uses the Cingular orange guys head as a bowling ball. This would seem to be TM dilution under the ruling in that John Deere dilution case.
6.22.2006 7:54pm
James Grimmelmann (mail) (www):
The dominant U.S. choice-of-law rule is that right of publicity cases are decided using the law of the jurisdiction in which the plaintiff lives (or in which he was living when he died).

Dominant, but by no means universal. See, e.g., Downing v. Abercrombie &Fitch, 265 F.3d 994, 1005-07 (9th Cir. 2001) (applying California right of publicity law when Hawaiian plaintiffs sued in federal court sitting in California). I've posted about some interesting issues in choice-of-law analysis as applied to posthumous rights of publicity, and I use Downing as one of the examples.
6.22.2006 8:38pm
JGR (mail):
I'm not a lawyer. Does anyone know if there's a reason for this rule, which seems to invert the standard philosophy of federalism. I recall that when there was a danger that local communities wanted to impose their own standards of decency on internet sites outside their jurisdictions, almost everyone agreed that although they were enforcing state laws, this was an invalid use of state laws because they were extending their state laws to a national level. Is there a reason that this is regarded as different, or is it just the chance outcome of stare decisis?

Eugene, I think it might make a good blog entry discussing if there are other cases where state laws have inappropriate reach (I know that this is a common concern with tort laws).
6.22.2006 8:45pm
Erick:
Trying to remember Conflicts....

I think its that the injury to the plaintiff occurs where he lives (since thats probably where he works, where his friends are, etc.). Originally, the place of injury was always used for torts, and its still mostly stayed like that(though with different justifications). The twist with defamation is that its one of the few torts where you can harm the plaintiff without getting anywhere near him or his place of residence, so the regular rule gets a little wonky.
6.22.2006 9:15pm
Malvolio:
On a related topic, Eugene, have you seen the new Alltel commercial that uses imposter characters for Sprint, Cingular, T-mobile and Verizon. I was wondering why none of these companies (especially Cingular) have enjoined Alltel from displaying these Commercials.
How is this a violation? The trademarks (well, technically only the Cingular "man"is trademarked, but I see what you mean) are accurately used to identify the products and services of their owners.

The fact that it is used to insult those products and services doesn't matter -- it doesn't cause confusion in the marketplace and it doesn't dilute the trademark.
6.22.2006 11:17pm
John Jenkins (mail):
JGR, those kinds of speech restrictions would run afoul of the First Amendment, not because of the contemporary local standards, but because one of the other prongs of the analysis (the artistic or literary value standard) is a national standard as opposed to a local one. I'm not sure the same considerations would apply in right to publicity cases (but the man who taught me torts is a little loopy, so they might).
6.23.2006 12:47am
The Voice of Reason (mail):
So Missouri law would affect what commercially distributed books, films, or other works anyone, whether in Missouri or not, can create.

Good. John Ashcroft has a right to his namesake wherever he goes. Why should his rights diminish simply because he travels to another state? A citizen is a citizen. If you want to use John Ashcroft's property, pay for it.
6.23.2006 1:29am
Paul Sherman:
The Voice of Reason said:

Good. John Ashcroft has a right to his namesake wherever he goes. Why should his rights diminish simply because he travels to another state? A citizen is a citizen. If you want to use John Ashcroft's property, pay for it.

There's a fair degree of question begging there. Your conclusion follows only if we presume at the outset that John Ashcroft has the right to complete control over the way his name is used (the "right to his namesake" as you put it). What's been suggested by Volokh in his previous post, and by others, is that the First Amendment trumps Ashcroft's (or in this case Twist's) control of his name in some circumstances and that this was such a circumstance. If that suggestion is correct, then the fact that this decision will affect First Amendment rights in states other than Missouri is cause for concern.
6.23.2006 10:28am
JGR (mail):
John Jenkins,

I know that the whole issue became largely irrelevant because the courts granted the internet full first amendment rights. If you remember at the time before the first big court cases, there was concern and a lot of debate because a lot of people didn't want the internet to have that level of protection. My point wasn't whether the first amendment DID apply - my only point was that even for people (mostly conservatives) who supported censorship of the internet, the local-vs-national issue was something they had to address in debates at the time, especially since many of the same conservatives supported federalism. I do know that in hindsight, the thought that the internet wouldn't have first amendment protection strikes most of us today as a lot of worry about nothing, but at the time the internet was so novel that a lot of intelligent people seemed worried, which is why we had all those debates on Firing line and C-Span in the early 90's.
And since most of the censorship involved things like pornography, it isn't clear to what extent the artistic standard always had relevance.
6.23.2006 12:09pm
agog:
Interesting. When I wrote that, I did have a vague notion that it was a bit incorrect because Missouri law might apply to stuff sold there. I could have covered this by adding "Or sell your work there" to my first sentence.

But apparently due to this 'choice of law' business even a boycott of the state wouldn't save you. I'm pretty unfamiliar with the law in this area--if my prior post didn't make this clear enough--but I'd appreciate it if someone who is could explain a few things:

-why isn't this type of regulation preempted by the commerce clause? is it only that congress hasn't acted on publicity rights?

-say Ashcroft is forced to sue in MO state court. how could the court actually get jurisdiction if nothing were ever published in MO?


On a related note:
-how long before books, magazines, comics, etc all come with 'shrinkwrap' licenses that select a publisher-friendly venue?

I guess this wouldn't necessarily obviate any publicity claim because such claims stem from the 'publication' itself and not any transaction between the plaintiff and publisher.
So what defines a publication? Is it possible to structure a 'shrinkwrap' licensing agreement for books and magazines that would prevent them from being classified as publications?

Presumably a book that one could only purchase upon signing an NDA isn't public. What if a publisher required buyers to sign a license with a few clauses similarly structured to an NDA?

I'd greatly appreciate pointers to any books or articles with background on this topic.
6.23.2006 3:30pm
Questioner:
So you're saying that it's not merely a problem if an artist creating fiction mentioning real people lives in Missouri. It's a problem if ANYONE lives in Missouri. Have to admit, I always thought so...
6.24.2006 12:35am
The Voice of Reason (mail):
If that suggestion is correct, then the fact that this decision will affect First Amendment rights in states other than Missouri is cause for concern.

I don't think this is a first amendment question, because I don't see any state action.
6.25.2006 6:54pm
JPinTulsa (mail):
If you haven't already done so, you might wish to track down the 10th Circuit opinion styled "Cardtoons v. Major League Baseball", which ruled that while three cartoonists violated the Oklahoma right of privacy act with their parody baseball cards (featuring "Treasury Bonds", "Darryl Raspberry" and others), application of that law to their enterprise violated the first amendment. It may also be interesting how Oklahoma law came to be applied (the case was filed by the cartoonists in Tulsa as a declaratory action, as I remember).
6.26.2006 8:34pm