Legal Blur Over Celebrities' Rights
Let's suppose that you're the VP of marketing for a cable network that has licensed the rights to air a blockbuster feature film. You want to use stills and 30-second clips from the film, and professional and personal information about its stars, in an extensive promotional campaign on the network's Website.
Unfortunately, the network's right to use these materials in this way is not explicitly authorized by the license agreement. You ask me, as the network's counsel, whether you can launch the campaign anyway.
Good question. But the U.S. Supreme Court recently passed up the opportunity to help answer it, leaving us with only the vaguest understanding of when publicity rights trump free-speech rights and vice versa.
At one end of the spectrum, 30 years ago, the court held that a broadcast news report of a “human cannonball” act at a state fair that included a 15-second film clip of his entire performance was not protected from the performer's right of publicity infringement claim by the broadcaster's First Amendment free-speech rights.
At the other end, the Supreme Court recently declined to review a federal appeals court decision holding that a publicity right infringement claim against the use of major league baseball players' names, performance and biographical information in an online fantasy baseball league is barred by the First Amendment's free-speech guarantees.
As an attorney practicing in the media and entertainment industries, I had hoped that the Supreme Court would review the appellate court's decision and provide some practical guidance about the lawful, albeit unauthorized, commercial use of a person's celebrity by a third party. Unfortunately, the Supreme Court's decision not to take this case leaves us in the same publicity rights/free-speech quandary that its decision in the human-cannonball case left us in some three decades ago.
In C.B.C. Distribution and Marketing v. Major League Baseball Advanced Media, C.B.C.'s licenses to use the players' names and information on its interactive fantasy baseball Website were not renewed. It sued Major League Baseball in federal court, seeking a declaratory ruling that C.B.C. had the right to use the names and information even without a license. Major League Baseball responded by alleging violation of the players' rights of publicity.
Baseball lost. The U.S. Court of Appeals for the Eighth Circuit affirmed the trial court's ruling in favor of C.B.C. and against the players, concluding that C.B.C.'s “First Amendment rights in offering its fantasy baseball products supersedes the players' rights of publicity.” The Supreme Court decided not to hear the challenge.
Although this case may resolve a few important issues about the extent of professional athletes' publicity rights, it leaves other, material questions unanswered. Bear in mind that the appeals court engaged in “balancing” C.B.C.'s First Amendment rights against the players' publicity rights. Unfortunately, the court's analysis doesn't help us understand at what point along the continuum the scales tip in favor of protecting publicity rights to prevent the unauthorized use of a celebrity's name and other information. For example:
As the players' infringement claim was brought under a Missouri right of publicity law, are there differences in other states' right of publicity laws that might yield different results (the human cannonball's infringement claim was brought under Ohio law, for example)? And, if so, how could a Website (or a cable network) effectively address these differences, as the Internet (and the network signal) crosses state boundaries?
And how important is the context in which the information is used? In this case, the appeals court was persuaded that there is a substantial public interest in online dissemination of a player's performance data that is worthy of First Amendment protection. After all, the court observed, baseball is the national pastime. But it might be equally argued that the public has a substantial interest in information about the careers of other celebrities, like actors and actresses.
My guess is that this decision may well be limited to its facts. For instance, the court observes that the players' names and other information are already in the “public domain, and it would be strange law that a person would not have a First Amendment right to use information that is available to anyone.” But it seems obvious that merely because intellectual property may be widely available doesn't render it free for the taking on the Internet.
In this digital age, many intellectual property laws designed to encourage creation and enjoyment are just as quickly becoming outmoded. While the result of Eighth Circuit's opinion may be right, we can't be sure because its reasoning fails analysis. Since the Supreme Court punted, the answer to the question about whether you can launch the promotional campaign without the film stars' permission is a definite maybe.