The Volokh Conspiracy - Fred Goldman's Attempt to Seize O.J.'s Right of Publicity:

The Complaint is here, and it's very interesting. The theory is simple: O.J. owes Goldman, according to the Complaint, $38 million (the original $19 million wrongful death award plus interest). O.J. has a valuable asset -- his right of publicity, which is to say the right to distribute merchandising containing his name, likeness, signature, voice, and the like (e.g., autographs, T-shirts, coffee mugs, and the like), the right to license these items for merchandising, and the right to license these items for advertising. Goldman, the theory goes, may therefore seize the asset to help satisfy the judgment, just like he could seize real estate, tangible property, patents, copyrights, and the like.

If Goldman prevails, then Goldman would presumably be able to license people to make O.J. T-shirts and the like, and to sell them. He could license the use of O.J.'s name and likeness in commercials (the licensee couldn't force O.J. to act in the commercials, but it could use preexisting pictures, hire lookalikes, and so on). He could license O.J.'s names and likeness for derogatory uses (O.J. toilet paper?), though some such derogatory uses might already be permissible to everyone (not just the holder of the right to publicity or his licensees) under the not-yet-fully-established parody / transformative use exception to the right.

He could also stop O.J. from doing all these things, since O.J. would no longer own his own right of publicity (just as an author who loses the copyright in his work is no longer allowed to make copies or derivative works of the work). And of course Goldman could also just refuse to license or sell anything -- even if the right is seized to help satisfy O.J.'s monetary obligation, once Goldman owns the right he has no obligation to make money from it -- but keep others, including O.J., from doing the same.

It's an interesting theory, and it sounds credible to me, especially if the right of publicity is treated as a property right akin to copyright or patent. Yet it does seem a little weird, especially given that the likeliest use of the seizure will be simply to stop O.J. or anyone else from making any money from his right of publicity, without making any extra money for Goldman, who I doubt really wants to make a living off O.J. memorabilia (unless he does want to go into the O.J. toilet paper business). Do any of our readers have expertise on the subject that they'd like to share?

	[Eugene Volokh, September 22, 2006 at 1:58pm] Trackbacks Fred Goldman's Attempt to Seize O.J.'s Right of Publicity: The Complaint is here, and it's very interesting. The theory is simple: O.J. owes Goldman, according to the Complaint, $38 million (the original $19 million wrongful death award plus interest). O.J. has a valuable asset -- his right of publicity, which is to say the right to distribute merchandising containing his name, likeness, signature, voice, and the like (e.g., autographs, T-shirts, coffee mugs, and the like), the right to license these items for merchandising, and the right to license these items for advertising. Goldman, the theory goes, may therefore seize the asset to help satisfy the judgment, just like he could seize real estate, tangible property, patents, copyrights, and the like. If Goldman prevails, then Goldman would presumably be able to license people to make O.J. T-shirts and the like, and to sell them. He could license the use of O.J.'s name and likeness in commercials (the licensee couldn't force O.J. to act in the commercials, but it could use preexisting pictures, hire lookalikes, and so on). He could license O.J.'s names and likeness for derogatory uses (O.J. toilet paper?), though some such derogatory uses might already be permissible to everyone (not just the holder of the right to publicity or his licensees) under the not-yet-fully-established parody / transformative use exception to the right. He could also stop O.J. from doing all these things, since O.J. would no longer own his own right of publicity (just as an author who loses the copyright in his work is no longer allowed to make copies or derivative works of the work). And of course Goldman could also just refuse to license or sell anything -- even if the right is seized to help satisfy O.J.'s monetary obligation, once Goldman owns the right he has no obligation to make money from it -- but keep others, including O.J., from doing the same. It's an interesting theory, and it sounds credible to me, especially if the right of publicity is treated as a property right akin to copyright or patent. Yet it does seem a little weird, especially given that the likeliest use of the seizure will be simply to stop O.J. or anyone else from making any money from his right of publicity, without making any extra money for Goldman, who I doubt really wants to make a living off O.J. memorabilia (unless he does want to go into the O.J. toilet paper business). Do any of our readers have expertise on the subject that they'd like to share?