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?
When you sieze property as part of a judgment, isn't the judgment reduced by the value of the property even if you don't sell it? I assume that if Goldman does this then OJ will attempt to claim that the judgment is satisfied, and there will be a lawsuit over this.
-dk
It has two potential underpinnings, both of which are mentioned in the first two paragraphs of Section A of the "Argument" in the brief. (p.4) "California has large recognized the right of publicity as derivative of the right of privacy." Call this the Brandeis/Warren theory. Followed immediately by "In California . . . Courts have that the right of publicity is a property right."
Search the document, and you will see that the word "privacy" is only used once (in the quoted line), and the Brandeis/Warren theory is otherwise omitted. (One might imagine that including it at all was an unfortunate oversight.)
There are, of course, good reasons for considering it as a "privacy right" or a "property right" in different circumstances, and 99% of the time it doesn't matter. This case is the 1%, because property rights can generally be alienated, while privacy rights cannot.
Before the thread turns into a "Property Right!"/"Privacy Right!" shouting match reminiscent of a light beer commercial, I would consider the ramification of the Property Right view dominating.
It strikes me that the results would tend more toward the punitive than the compensatory, as Prof. Volokh indicates.
-dk
However, the Right to Publicity appears to be related to the Right of Privacy. Consequently, I am not sure if publicity, as a corollary to privacy, which is a fundamental right, can be stripped involuntarily from its holder.
I am also wondering what might happen if Goldman is successful. For example, could a Right of Publicity be an asset of a bankruptcy estate if the debtor is famous? If so, how could it be measured or enforced either pre or post-discharge? Likewise, what if the famous person is a minor? Can the parent, acting as guardian, encumber the Right of Publicity past the age of majority? What happens if the minor emancipates?
This is not my speciality by any means--just an area that has always intrigued me.
On an unrelated note, this motion also is a good reminder to proofread pleadings before filing. I am sure that Fred Goldman would be jusitifiably outraged at being referred to as "Frederic Simpson" (page 4, line 2), even by his own attorneys.
Typically, yes. And in this case, there could theoretically be court proceedings over the market value of OJ's publicity rights. But the judgment would only be satisfied if those rights were worth $38 million, and I doubt that they're worth anything close to that -- I can't remember the last time I saw OJ's likeness being used commercially.
Colorado (at least) requires beyond a reasonable doubt. CRS 13-25-127
Many more require clear and convincing.
Then the question would be how do you separate this "property right" -- which is not a thing in any real sense but a legal construct -- from OJ's actual personage. What if OJ takes a job that puts him in the public eye? Is he "trading" on his persona as part of the property right seized by Goldman or providing his body/voice etc for services rendered?
Well, at least that's one way to get around McCain-Feingold...
Yeah, I mean, whoever tries to get back at someone who killed his son? I mean, seriously! It's just murder. Shouldn't he get over it?
/sarcasm
I do disagree with EV's last paragraph: if Simpson is evading the court order and earning money under the table using his right of publicity, turning over the right of publicity to Goldman creates the possibility of a deal whereby Simpson pays Goldman upfront money for the right to sign autographs in Chicago for an hour.
And if the right is transferable, Goldman could monetize it by selling it to someone who is willing to sell tasteless OJ-Simpson branded products.
Of course, that assumes that the property right in a living celebrity is enforceable when it's not held by the celebrity. I'm simply not creative enough to see how that is at all feasible. Goldman surely can't prevent Simpson from giving interviews for free, even though it dilutes the value of the "brand."
Furthermore, how does one assess the value of the property right against what is owed? What happens if Simpson claims his name value is worth $50 million, and Goldman owes him several million in change?
By the way- speaking of MLK, how is his family able to keep his speeches of great historical value considered "out of the public domain?" Seems like a limitation on the usefulness of the copyright laws.
Disclaimer: IAmNotALawyer, and all I learned of Economics was from ECON202 and Wikipedia.
The simpson case, which I think is quite reasonable in itself, is a step towards this set of the bundle of rights becoming commodified. Robin Hanson advocates futures markets, and the general trend since the 70s has been to recognize that markets are efficient. David Bowie raised 50 million by packaging and selling his expected future royalties from his old albums.
There's a new niche here, depending on how the case goes, for people to set up markets in this stuff. What am i bid for 0.01% of the backstreet boy's rights of publicity?
Maybe the evolution of these new forms of assets will help in some small way in the reshaping of music distribution that is going on now.
There's also the matter of policy as to waste. As mentioned Goldman would likely exercise this as an injunction to prohibit OJ from working or promoting himself in any way. I find it hard to believe a court would endorse this.
It seems the better approach is to allow him to go after income directly derived from this right. OJ was in several TV shows and the popular naked gun franchise. I just noticed that the long running HBO show "1st and Ten" is now out on DVD. I'm assuming OJ is entitled to some royalties or residuals from his acting career. Goldman should be able to go after those.
So, why not just declare Simpson to be Goldman's slave? That seems to be where Goldman's heading.
The privacy / property duality isn't contradictory. It's true of labor: you can take money to work, you can take money NOT to work (noncompete K), but the 13th amendment prevents anyone from forcing you to work. Labor behaves like a property right, but it's protected from certain encroachments as a liberty right.
So it's no big deal to think that RoP could act like a property right, up to a certain threshold, at which point it acts like a privacy right.
One interesting wrinkle about this issue is that the choice of law that determines a person's postmortem privacy rights is determined by the state where they die. If Fred Goldman was able to obtain an assignment of O.J.'s privacy rights, what would happen if O.J. wanted to leave the state? If O.J. moved to Indiana, the chose in action possessed by Fred Goldman and that Fred Goldman could freely devise would increase in value due to Indiana's greater statutory protections. If O.J. moved to NY, the chose in action possessed by Fred Goldman could be extinguished.
Yet the P&A asserts (in III, Argument), quoting a 2004 scholarly article,I don't know the history of the current right to publicity in CA, but I find it a bit difficult to understand that assertion without knowing whatever historical synopsis the cited article provides.
"I bought this t-shirt to make OJ pay for what he did"
Thank you. This is exactly what I would have posted were I not drinking a beer right now. I would only further note two things: (1) that O.J. Simpson was not convicted of a crime, so the Thirteenth Amendment exception does not apply; and (2) during the O.J. murder trial, Fred Goldman managed to arrive on the courthouse steps for his daily press conference with a perfectly groomed handlebar mustache. Primping your mustache in front of the mirror early in the morning of each day doesn't strike me as particularly grief-stricken.
John Noble
Right, and I even agreed with the jury's verdict. But he was duly 'convicted' of having killed his wife and Ronald Goldman (crimes) by a jury, albeit a civil one, so I think a case can be made for a Thirteenth Amendment exception. My point, in case you missed it, was largely sardonic.
Though this comment was not very artfully stated, I think it does somehow raise an interesting point. While I totally agree with EV, I wonder what happens when this rule becomes extended, say, to sale of "goodwill" attached to someone's name. E.g., person like Tiger Woods starts a very high level elite professional golfing coaching school, completely predicated on his name plus his personal service in rendering the high level coaching instruction=an intangible asset of "goodwill."
It would seem to me, in the latter hypo, the "goodwill" might not be saleable, since there would be nothing left of the "goodwill" absent Tiger performing personal services as a componenet of the value of the intangible "goodwill" asset. Since there is no specific performance of personal service contracts and the 13th Amendment bars involuntarily forcing someone's labor, it would seem the latter hypo would fall on teh other side of the line from the sale of O.J's right of publicity.
In O.J.' case, he already earned his publicity name, so to speak, and therefore to allow Goldman to execute the judgment on it would not require personal service or involuntary labor from O.J.
I do wonder, however, if Goldman would have the right not to maximize the economic value by sitting on this intangible asset, once he executes upon it.
This is also an interesing point. Exactly. And additionally, Goldmand could assign, lease, license, or unbundle portions and do the same.
No, I think this gets it all wrong. Once the judgement is executed on the asset, the ownership is then in Goldman. Subsequently, whether the value goes down or up (appreaciates) inures to Goldman, O.J.'s ownership rights having been severed by the execution of the judgment that severs O.J.'s ownership of the asset. Any consideration of the value "in perpetuity" would have to be made at the time of execution of the judgment, not after *seeing how it goes* post-execution.
It is kind of like viewing the sale of real property; once the ownership has changed, the prior owner cannot claim any appreciation rights as against the purchaser (new owner). This is the bargain they made in executing the sale -- who has the risk of downturn and the advantage of appreciation. It could go either way for the new owner. What you are positing is that somehow, Goldman should take on all the risk of the intangible asset becoming less valuable or even a liability, but not benefit form all the upturn (appreciation). The faulty analysis is quite evident in the failure of your line of thinking to assign to O.J. (if you would give him a share of the appreciation, if there is some), also the obligation to satify paying a share of any downtrn or liability. It just doesn't work the way you suggest in your comment.
"Then the question would be how do you separate this "property right" -- which is not a thing in any real sense but a legal construct -- from OJ's actual personage. What if OJ takes a job that puts him in the public eye? Is he "trading" on his persona as part of the property right seized by Goldman or providing his body/voice etc for services rendered?"
This is sort of a more interesting question. I would not characterize it as "personage," but perhaps as I discussed above, when O.J. is performing personal services deriving from who he is. If O.J. take a job, it would depend on the type of job, I would think. If O.J. is selling elite Heiman trophy-esque instructional services, maybe he is more like the Tiger Woods hypo I suggested above. But if O.J. is dressing up in an "O.J." suit as the Heisman Trophy itself with his name on it, it would seem to me (once Goldman executes on this intangible asset), that O.J. would violate Goldman's ownership rights, and hence Goldman could bring a cease and desist, disgorgement of profits, and/or injunctive relief action -- and get an order enforceable by contempt. Endorsements are a much more interesting issue, but I think there would be plenty of value already in the intangible publicity asset for Goldman, without having to even address or rely on the endorsement issue.
The question is interesting from the perspective of exactly how broad are the ownership rights in the intangible asset Golman will acquire by executing the judgment on it: at some level, the asset must include copyrights and trademarks. It would seem Goldman would have the right not only to existing copyrights and trademarks included in the asset he executes on, but also the right to apply for new copyrights or trademarks. (e.g., an "O.J. doll or an "O.J. T-shirt).
Now what happens if (after execution of the judgment on the pre-existing and then-existing publicity) O.J. goes out an becomes embroiled in an entirely new cause for publicity -- say he is caught in a marijuana bust, and for some reason he thinks he would like to sell his picture in the middle of a marijuana patch for the purpose of discouraging drug use. It would seem to me, this cause for publicity is a new one, and would not be included in the asset owned, post-execution of judgment by Goldman. Anyone eslse have any light to shed on this?
But, in any event, it is a harder line to draw.
"I do disagree with EV's last paragraph: if Simpson is evading the court order and earning money under the table using his right of publicity, turning over the right of publicity to Goldman creates the possibility of a deal whereby Simpson pays Goldman upfront money for the right to sign autographs in Chicago for an hour."
I do not think, under my above discussion, that Goldman could get any order to compel O.J. to sign autographs post-execution of judgment, since there is no specific performance of personal services and there would be a 13th Amendment involuntary labor bar; but if O.J. already had in his possession signed autographs on photos or pricutes, then ownership of these would be executed upon and ownership would transfer to Goldman, then Goldman could reproduce, lease, license, or whatever copies of these already autographed photos or pictures.
"And if the right is transferable, Goldman could monetize it by selling it to someone who is willing to sell tasteless OJ-Simpson branded products." And, while this may seem in poor taste to some people, after Goldman executes the judgment on the intangible asset, he can do whatever he wants to maximize value -- including satirize or characterize dolls, T-shorts. or other object that might poke fun at O.J., and who can say these would not sell? Just look at the Pet Rock. Such value producing $$ would inure to Goldman in satisfaction of the judgment.
"Of course, that assumes that the property right in a living celebrity is enforceable when it's not held by the celebrity. I'm simply not creative enough to see how that is at all feasible. Goldman surely can't prevent Simpson from giving interviews for free, even though it dilutes the value of the 'brand.'"
No? I surely can think of more than one federal judge who could and would isue an injunction prohibiting O.J. from giving personal interviews that would interfere with the value Goldman can realize from the intangible publicity asset. Injunctive relief prohibiting interference with the economic rights owned by Goldman post-execution of judgment is not the same thing as mandatory injunctive relief directing O.J. to perform personal services and/or involuntary labor to enhance the value of the post-execution goldman-owned intangible asset.
"Furthermore, how does one assess the value of the property right against what is owed? What happens if Simpson claims his name value is worth $50 million, and Goldman owes him several million in change?"
How is this so difficult? I am sure Sotheby's, Christies, or Lloyd of London could perform such a task if there were a reason to value an intangible asset. This is what appraisal and actuarial science is about, and it is really similar to a much more specialized form of how a personal injury award might be calulated when a Carnegie Hall musician loses the lifetime ability to play as the result of some injury.
"Why can't Goldman simply get an injunction granting him all revenues OJ's right of publicity generates? If he has evidence that OJ is pocketing the money and not paying him, contempt of court is available." I am wondering if a lot of people here did not take copyright, patent, trademark, and IP law. Injunctive relief does not give compelte relief, since in this instance, O.J. would still be holding a lot of the loot; hence injunctive relief must be accompanied by disgorgement of the illgotten gains to O.J.
"I did a bunch of research over the summer relating to the Right of Publicity. Whether it's viewed as an alienable property right or an inalienable privacy right depends to a large part on the origin of the right in the particular state. Most states, including CA, have a statutory right of publicity that is transferrable and descendible. Some states, like New York, have a right of publicity that is grounded in privacy rights, and is therefore not transferrable or descendible.
One interesting wrinkle about this issue is that the choice of law that determines a person's postmortem privacy rights is determined by the state where they die. If Fred Goldman was able to obtain an assignment of O.J.'s privacy rights, what would happen if O.J. wanted to leave the state? If O.J. moved to Indiana, the chose in action possessed by Fred Goldman and that Fred Goldman could freely devise would increase in value due to Indiana's greater statutory protections. If O.J. moved to NY, the chose in action possessed by Fred Goldman could be extinguished."
I would think (bringing up the subject of bankruptcies), that Goldman could lock in the publicity being created under California law and prevent the value of his post-execution of judgment intangible asset from changing on a State-by-State basis occording to O.J.'s residency whims, by filing for Chapter 11 reorganization relief the mement the judgment is executed, and getting a federal bankruptcy judgment recognizing the asset under California law, which bankruptcy judgment would then be res judicata for all time. Sort of an Anna Nicole Smith-esque twist on maximizing the intangible publicity asset for Goldman. Goldman would just have to ensure debtor-in-possession remained in control, to avoid loss of control over an unanticipated conversion to Chapter 7 and liquidation of the asset.
From TFA at PDF page 11:Negative exercise of the right avoids issues of involuntary servitude and issues of personal privacy. It just says "you can exercise your right to publicity any way and any time you want, but you've got to pay me when you do it." It's more analagous to wage garnishment than to controlling when, where, or how the debtor works.
Whether the court could or would sever and convey only that negative component of the right is beyond my knowledge to speculate plausibly. But I think that is what Goldman is actually seeking. Any more complete transfer of the right would open the major cans of worms already discussed here.
The California statute cited by Goldman seems to be directed to ascertainable income streams, not intangible property in general. So if Goldman really wanted money out of this, what he should have done was ask for an order permitting him to execute on the right to publicity, and then allowing him to sell it at an execution sale. The price obtained at the sale (an auction at which anybody could bid) would then be a credit against the judgment balance. One can easily imagine that there are third parties out there that might be willing to bid at such an auction because they think money could be made from those rights.
But instead, Goldman is asking the court to transfer O.J.'s right of publicity directly to himself, so he will be in control of it. This is a far murkier and more unusual maneuver, because it raises the question mentioned above about how to value the right for purposes of crediting the judgment balance.
The obvious explanation is that Goldman doesn't really want to get money from this, but instead wants to use ownership of the right to publicity to humiliate O.J. or to starve him.
I doubt it's worth much.
I would assume that Simpson could extrapolate the value of the name as a credit against the judgment. Then Goldman could use the name or not as he wished.
Expect the judges to bend the law to help Goldman. In cases of Family of Murder Victim v. Murderer, most judges will do what they can to help the family (this applies even where the guilty murderer was acquitted due to sloppy and dishonest police and prosecutors).
As to the potshots against Goldman, give me a break. I have represented numerous people convicted of murder (and worse). One thing I have learned is to treat the victim's family with respect. Sometimes there are questions about whether the defendant really did it, but, by definition, the victim's family has always lost a family member.
The media was all over the O.J. case. If making himself look good each morning helped Goldman get through it, more power to him. If he can make O.J.'s life more difficult, more power to him.
I agree with you that the logic behind the misappropriation claim perhaps SHOULD be limited to the value of the star's endorsement, but you will find plenty of cases and commentary (see eg the McCarthy treatise) saying that the right of publicity does not protect against only false imputations of endorsement (in which case section 43(a) of the Lanham Act would suffice), but against any use of the celebrity's persona for commercial purposes.