Bobble-heads:

A few doctrinal items about Schwarzenegger and bobble-heads:

1. Contrary to what some have said, Schwarzenegger’s claim isn’t a federal copyright claim; it’s a state law “right of publicity” claim. Copyright law protects people’s creative expression, such as their writings, recordings, and the like. Right of publicity law protects their names and likenesses, at least against certain uses (which likely do include bobble-heads, though I think the First Amendment should preempt that sort of claim).
2. Generally speaking, all people have a right of publicity — private people, famous actors, sports figures, and others, and government officials. (Private people’s names and likenesses are used more rarely than those of famous people, but the private people do have a legal right to control such use.) Schwarzenegger did not forfeit his right of publicity simply because he was elected Governor. In practice, few government officials have threatened to sue on these grounds, perhaps because they think it would be bad publicity. (Jesse Ventura, though, apparently threatened to sue some makers of Ventura action figures after he became governor, but that’s the only such incident of which I am aware.) But they are legally entitled to sue. I think (for reasons I mentioned in my original post) that the right of publicity is a bad idea genearlly; I do not suggest that the rule should be different for government officials, political leaders who aren’t government officials (such as Martin Luther King, Jr.), and movie stars.

I hope to blog some more about the broader policy reasons for my dislike of the right of publicity; but for now I thought I’d mention the doctrinal points.