‘Do You Know Your Right of Publicity?’ (Audio and Transcript)

Listen and learn from the expert herself in conversation with Scheer in the player below, and read the transcript that follows. Find past episodes of “Scheer Intelligence” here.

Robert Scheer: Hi, this is Robert Scheer, and you’re listening to Scheer Intelligence, kind of the poor man’s Central Intelligence Agency. My guest today is Loyola Law School professor and author Jennifer Rothman. Her latest book is called “The Right of Publicity: Privacy Reimagined for a Public World,” published by Harvard University Press. Jennifer Rothman, welcome.

Jennifer Rothman: Thank you.

RS: And the reason I wanted to do this interview is we had kind of a confusing panel about privacy and publicity at the Los Angeles Times Book Festival. And I thought after–you know, sometimes you just get off one of these panels–and I thought we were like ships passing in the night. I was stressing the surveillance state and privacy and the Fourth Amendment; and then we had a person, I’m blocking on his name, but he was very much into the technology, stressing that. And then you were coming from an area that I hadn’t thought much about, or if at all, and yet it’s incredibly important, because it concerns how much we know about people that otherwise are public people; they’re movie stars, they’re politicians, and their ability to control their image, I think, is the real issue, particularly in the time of the internet. Famously, the case of Martin Luther King, where his heirs can control even access to his speeches. And you’re kind of the maven of this in law, right? You’ve invented, or owned, or are the leading scholar in this area.

JR: Yeah, I don’t think I own this space, but I am known for being the leading scholar, and this is one of the first major treatments, book treatments of the subject. And the right of publicity is a law that most people don’t know about, but that affects all of us. And everyone actually has this right under state law; it’s the right to control your own identity, usually your likeness or voice or name. And you can stop others from using it, or collect money damages if they do without your permission. And this presents a host of opportunities in today’s digital age, where privacy has really fallen down on the job in many respects, because it narrowed over time to really just be, in the context of state laws, to really apply to secrets, or when people are secluded in their homes. But the right of publicity covers information that’s out in the public–your name, your likeness and voice–and so it’s not about secrecy or seclusion, it’s about control. So this has some opportunities for your average person to combat things like Facebook using you in advertisements, or selling information about you; it applies, you may be able to use it to stop revenge porn or deal with mugshot sites that are using arrest photos. But it also has a number of risks, and one of them you just highlighted, which is the ability of public figures to shut down speech about them, and shut down uses of their name and image and voice, which can shut down creative works like movies as well as internet discussions about public figures, and even the use of clips of Martin Luther King giving speeches.

RS: Yeah. So let me, first of all, you say it’s a matter of state law. So it varies from state to state?

JR: Yes.

RS: And so, what, California has the harshest because we have more movie stars, or how does it work?

JR: Well, that’s actually very insightful. California does have a very robust right of publicity. We have three separate rights of publicity in California; most states only have one. And we have rights for dead people, to protect their names and likeness and voice, even when they’re gone; and which can create a major windfall for some. And we also have rights for the living, both statute and common law, very broad; rights for the dead last 70 years after their death. Other states just incorporate this into state privacy laws and are more modest. Some states, like Utah, limit it to instances in which there’s confusion as to whether a particular person sponsored the use or endorsed the use. So there’s great variability. And I actually started a website where you can click on your state and find out the laws of the state, because they vary so dramatically. It’s Rothman’s Roadmap to the Right of Publicity, RightofPublicityRoadMap.com, and I also have breaking news there.

RS: I just want to connect this a little bit with the European Union Google issue, which has bothered a lot of people; the European Union said you have the right to control your image on the internet to some degree, and if you feel something is inaccurate–does that apply here?

JR: So they overlap. I think you’re referring to the right to be forgotten.

RS: Yes.

JR: And there’s some reasons why we might be sympathetic to that; particularly young people making bad decisions, and then all of a sudden photos of them getting into trouble are all over the internet, and it’s very difficult for people to start over or get jobs. And so the EU, as a matter of personal right, is protecting this right to be forgotten. We do not have that in the United States, and it’s very much intention with our commitments to free speech and the First Amendment. So the right of publicity in some respects is our version, but it’s not about being forgotten, or hiding history; it’s about controlling information about yourself.

RS: But it has a similar impact. And I just want to–let’s say, OK, myself; OK, let’s say I gave some dumb speech, and I don’t really want people to read it, or I wrote something or said something. I could then copyright it, right, in effect. Or my heirs and I could say in perpetuity, I don’t want this thing referenced.

JR: There’s a difference between copyright and the right of publicity. So copyright is about works of expression that are in a fixed form. So if you write a book, if you give a speech that you’ve written out, or if it’s recorded, that would also benefit from copyright. But copyright has very broad fair use provisions that allow–especially if someone’s not trying to take all the market value or sell it, is just trying to refer to it and document excerpts of it to say what you said, or to comment on your speech–copyright is going to have broad protection for that.

RS: So let me just take Martin Luther King’s, because this has been one area people are trying to, some people mistakenly, I think, trying to protect his image, where in fact they’ve actually excluded our use of his product. And I’m thinking of one particular speech, he gave a very strong speech at Riverside Church condemning the Vietnam War. And I’ve tried to run that speech on our site and elsewhere, and you really run afoul of, I guess it’s his trust, or his heirs. And they can say, we don’t want, we have to give you permission to have his speech. Is it only his voice? Can they control the text?

JR: Yeah, so the estate is very, the Martin Luther King, Jr. estate is very litigious. And they have tried to stop people from sharing his speeches, both the written text of his speeches and video clips of his speeches, and have been fairly successful. Movies and television shows have been paying the estate for permission to use his words, to show clips. And part of that is about copyright; the copyrights to the speeches and some of the video images, if they have control. The other part is the right of publicity, and they’re claiming they have a right to decide when his name and likeness and voice are used. And the U.S. government actually paid $800,000 for the statue honoring Martin Luther King in D.C., which is sort of shocking, because it seems like it’s in the public domain to honor him. The estate has also shut down the sale of Martin Luther King busts, or the sculptures that people could buy to honor him in their house, and to celebrate civil rights, and the estate said no, you don’t have the right to do that, and have been successful at stopping those uses. I don’t know if you watched the Super Bowl, but before the Super Bowl there was a Dodge commercial for a truck that used an excerpt of a Martin Luther King speech, and they did get permission from the estate, but people were outraged, because it seemed offensive to the memory of Martin Luther King, Jr. And his own daughter disclaimed, and the Coretta Scott King Foundation disclaimed their involvement in authorizing that.

RS: OK, but take us through this, because I think most people listening to this would not understand that the U.S. government could not commission an artist to do a sculpture of Martin Luther King, right, that’s going to be out in the public; they have to have the permission of his estate?

JR: Well, that is a gray area. And the U.S. government decided they didn’t want to fight with the estate or risk a lawsuit, and so they paid a large sum of money.

RS: On what basis? I mean, why can’t any artist in the world conjure up an image of Martin Luther King and make a sculpture or a painting or something? Why can’t they do that?

JR: Yes, I think it’s absurd, and somewhat gutless, by the government to be afraid and feel like they had to pay. But these are the sorts of uses, in single works of art or statues, that generally have been allowed. But on its own terms, the right of publicity, and the one that is involved with Martin Luther King, he–they’re now right after he’s dead, that his heirs have, and they can prevent uses of his name, likeness, and voice, unless either the state law has an exception, or you litigate and the First Amendment is held to protect the use. And I think in this instance, the freedom of speech would have protected the use; single statue honoring him and a short quote from one of his speeches would have also been allowed under copyright law.

RS: OK. So let’s make a, have an unflattering reference. Let’s say we have a, not a wonderful human being like Martin Luther King, we had, say, an American demagogue who was, you know, anti-Semitic and racist and homophobic and misogynist, OK, and was a senator, say, from South Carolina or something. And print their speech because it reflects all that. Isn’t there a free press, free speech right to do that without having the permission of the heirs?

JR: Yes. So I want to highlight again the difference between copyright and the right of publicity. So copyright would protect the speech, and then if you’re using an excerpt of the speech, that’s going to be a fair use, it’s going to be allowed. The right of publicity is just focused on the name and the likeness and voice. So again, if you’re referring accurately to someone, those are the sorts of uses in journalism and commentary that courts have allowed. Where it starts to get more problematic tends to be in cases where there is deemed to be some sort of commercial profiting. And sometimes the commercial profiting is in video games or in movies, which are making a profit. Or sometimes it’s in merchandise. So the Martin Luther King busts were sold for money, although part of it was donated. You can think of, there’s an artist Rick Rush who painted pictures of athletes, and notably painted a picture of Tiger Woods winning the Masters, and then he sold copies of his lithographs referring to Tiger Woods. Tiger Woods sued for a right of publicity violation, as well as some trademark violations. There the court said that the use was protected by the First Amendment in this artistic work. But we have cases that have come out another way, very similar cases in other states. For example, in California the estate of the Three Stooges sued over an artist’s rendition of a portrait of the Three Stooges, a realistic charcoal lithograph which was sold both in print, but also sold on T-shirts. And the California Supreme Court said the First Amendment didn’t protect this artistic use because they were profiting, the artist was profiting financially from the sale of the Three Stooges.

RS: So what if the T-shirt had attacked the Three Stooges and said, you know, they’re reprehensible and their comedy sucked, and then we got a picture of them, you show them being foolish, and then you had some text–that would probably be First Amendment protected, right?

JR: I think that instance, where there’s critical commentary, likely would have come out the other way and been allowed. And that’s something I talk about in the book, because the California Supreme Court contrasted this artist Gary Saderup’s painting of the Three Stooges with works by Andy Warhol. And of course Andy Warhol famously painted celebrities and made a lot of money selling his pictures, but he added some color, or changed the saturation of even black and white images. And so the question is, where, how do we determine what’s allowed and what’s not? So maybe a negative comment, but would a picture of the Three Stooges where you add color or you add a few other comedians, or you seem to be making a commentary, come out the other way? And so there’s a lot of uncertainty about what’s allowed and what’s not, and people are afraid of being liable for these right of publicity claims, and that affects what works get created.

RS: The book is called “The Right of Publicity.” Now, first of all, this right, does it go back to the Magna Carta? Does it go back to the Old Testament? You know, where does this right come from? It’s just a bunch of states at different points passed laws because they were under pressure from people who wanted to preserve their image or their product, right?

JR: Yeah, so this is, this right of publicity is not a constitutional right. However, it emerges from state law in the 1800s, and like many of our laws are, started in what’s called the common law. And that is just laws that courts make, and here is based and rooted in the notion of personal autonomy and having some zone of control over your own identity. And it started in the 1800s, largely with the emergence of what were called detective cameras, the first Kodak cameras, and people were walking down the street and all of a sudden someone could take their picture. And then they’d find it on the front page of the newspaper, or they’d find it in an advertisement for flour or life insurance, and there was an outcry by–including by journalists, surprisingly–but by average citizens, journalists, and prominent figures at the time, all calling for this right to stop unwarranted publicity about oneself, and to be able to control the use of one’s name and image. And these were the very first privacy rights that were adopted in the United States, long before the broader constitutional right of privacy emerged.

RS: [omission for station break] My guest is law professor Jennifer Rothman, who is really a pioneer in a very important and controversial area of law. And the title of her book, “The Right of Publicity: Privacy Reimagined for a Public World,” published by Harvard University Press, and she’s a professor at Loyola Law School. Why are you passionate about this? Why is this important?

JR: There are three things that drove me to write about this. And one is that I think this is an era in which so much of our information is out in public, and can really destroy people’s lives; and privacy law is not helping, particularly average citizens. Meanwhile, this right of publicity is giving a profound boost and control to very prominent public figures in ways that are shutting down free speech. And that seems to me to be exactly backwards; that the people who most need to have more leverage to control how their identity is being used have the least control, in the way we’re currently understanding the laws, while those who we need to speak about the most are able to shut down speech about themselves.

RS: Why can a well-known person control their image and an ordinary person doesn’t? Is it a matter of resources, or being able to go into court, or setting up a trust, or–?

JR: Well, it has happened because of how the law has been misunderstood. And that’s part of the mission of the book, is to talk about how this right of publicity is really one and the same as the original right of privacy, which is more focused on protecting individual rights than just economic rights.

RS: This is the thing I did not understand on our panel, and I did not get clearly from working my way through your book, which is a very good book, but it deals a lot with complex legal issues, though there are a lot of really good examples there. But take me through that. That’s the part I missed. That you really are an advocate for privacy for ordinary people, and you think this law should properly be used to extend that.

JR: Yes. And so what happened was that the right of privacy and the right of publicity turned into this intellectual property right, like copyrights or patents. And what that has done is given a very robust ownership right by people who are deemed to have commercially valuable rights of publicity–so those are usually the public figures, the celebrities. And so they’re deemed to be more valuable than others. And there was a court case involving “The Hurt Locker,” the Academy Award-winning movie, and the army sergeant who thought the movie was based on him sued, saying they’d used his identity. And he lost his lawsuit, which I think was the correct outcome in that instance. But the court said it would be different if he had a commercially valuable personality; if he earned money sort of selling his identity, the way actors and celebrities do. And so unsurprisingly, we then had Olivia de Havilland, a two-time Academy Award-winning actress, you know, understand that to be a signal that she could sue if someone used her identity in a similar biographical picture. And that’s exactly what she did, arising out of the miniseries Feud. And so that seems to me exactly backwards; that we would shut down speech about these people who aren’t replaceable; we need to refer to Olivia de Havilland if we’re telling a story about Olivia de Havilland. The other problem with the shift to the intellectual property framework–and this is another thing that people don’t realize, and that I think is quite dangerous, and drove me to write the book–is that by making it an intellectual property right, it can be taken away from people. Which, it may be problematic if someone takes your car; if you declare bankruptcy and you lose your car. But it’s even more chilling if you declare bankruptcy and you lose the right to your own name and voice and likeness. And that’s what can happen when we understand the right of publicity as we often do today, as this transferable, intellectual property right.

RS: Let me ask you, there’s one case that comes up, I think that involved a UCLA basketball player who showed up in a video game, his likeness. And there’s a lot of college athletes have been used in that way, and they don’t get money from this thing, so they sued. And I think successfully stopped it, is that correct?

JR: Yes. So there were a series of lawsuits by athletes, student athletes and professional athletes, about the uses of their identities. And there were a number involving video games. And so the video games recreated historical rosters’ players, and they licensed the NCAA, and the NCAA made a lot of money about this. But it also raises some of the free speech issues, because you’re describing actual players who played on actual teams, and statistics, very much like fantasy sports. And that the Supreme Court recently gave sort of a broader license to be able to do by legalizing sports gambling. And so the question is, how much control do athletes have over these uses of their identity? And the, in the video game cases, several federal appellate courts said the First Amendment doesn’t protect those uses, and that the athletes have to be paid. Now, as a matter of First Amendment law, I think that’s wrong, and very troubling. Because it’s shutting down speech about real people, and accurate descriptions of history; you can imagine that it would really limit biographical video games. On the other hand, student athletes, I think, are greatly mistreated by the NCAA. And actually until recently the NCAA had the students sign contracts, as a condition for playing and for getting their scholarship money, that transferred their rights of publicity–their rights to their names, likeness, and voice–in perpetuity, forever, to the NCAA. And so that’s very much in the heartland of what’s concerning to me, that these student athletes who have no leverage would be forced to sign their rights of publicity to the NCAA. And then of course if the NCAA owned the rights, they could not only license the student athletes in video games, but they could have them appear in advertisements or all sorts of products without further permission from the athletes, for the rest of the athletes’ lives, and even after death, under many of these laws.

RS: So what’s the current status of that? Can you grab an athlete’s image and exploit it? The NCAA is particularly offensive in that way.

JR: It depends on the context. So in video games, it seems not; that you need to get permission, at least depending on the type of video game, from the athletes. But there are other cases involving the use of photographs that the NCAA took of the students while they were playing, and courts have allowed those photographs to be sold by the NCAA without additional permission or payment to the student athletes.

RS: “The Right of Publicity: Privacy Reimagined for a Public World.” And it could just as easily say, “Privacy reimagined in the age of the internet.” Wouldn’t that be also? I mean, the public world is really this internet that we are living in now. And do you think it’s hopeless–or, obviously, you don’t; you wrote this whole book–can we really have sensible rules of the road for the internet in this regard?

JR: Yes, I think that the right of publicity is one of the opportunities for preserving the concept, the broader idea of privacy, and what we really want in the internet age. So it used to be that you would write a letter and no one would see it, and now, you might write a blog post or share images on Instagram, and if you ask–sometimes people say, particularly older people looking at the younger generation, will say “Young people don’t care at all today about privacy.” And when you dig down a little deeper and ask the younger people about what their preferences are, they actually care a great deal about privacy. What they don’t care as much about is secrecy. But they care very much about control. So they might want to share where they’re eating or what they’re eating or who they were with or their blog post, but they want to be able to control what else is done with it. So by putting it out on the internet, they’re not saying, here, take this and do what you want with it. They’re sharing it, but also want to control its future use. So they would be as upset as anyone else if it then got used, say, in an advertisement, or if Facebook coopted it and started disseminating it. Twitter has started selling playing cards with Twitter users on it, and didn’t get additional permission. Those are the sorts of uses, even if someone puts an image out there on the internet, that they want to be able to control. It’s often said that privacy is dead, but that’s only by people who really don’t understand what the original concept of privacy was.

RS: Right, but you’ve put your finger on the main contradiction, which I find–I don’t know about your students, but I find my students at USC, that this is it. They’ll at first say, who cares, so Yelp knows where I ate, and so Facebook has this. And then, if any of them in the room have experienced the misuse of that information–they’ve been stalked, they’ve been defamed, their pictures have been distorted, their private information–suddenly, they’re very much for controlling it. And it really even goes to political expression–well, very much so. If you don’t think you’re going to do anything that disturbs the government, or disturbs powerful people, then you say who cares if you know what I read or what movies I watch or my letters. But if you think you might say something controversial, then there’s a different sense. And I think Mark Zuckerberg’s idea, really, was that we would be a passive nation of consumers. And in the interest of more effectively consuming, we would reveal everything about ourselves–our clothing sizes, our tastes–right? So we would get product placement near us. And I think we now have had a moment, a time of reckoning, that no–this could really hurt you. Do you get a sense of a shift in attitudes in response to your book?

JR: I think that there’s growing awareness. And certainly the Cambridge Analytica coverage made people more aware of how their information is being used in ways that they were not aware of, and that they don’t agree with. And the right of publicity is one way to try to push back on that by giving people a lever of control. It’s not the only way, and I think that there needs to be probably some government regulation in this space as well, particularly related to online privacy. But the right of publicity starts by giving people a baseline of control over their name, likeness, and voice, and some other aspects of identity. And I think it’s something that everyone needs to be very aware of in the digital age. Because not only does it have this opportunity, but it has these risks. So when you repost things, you could potentially be liable for violating someone else’s right of publicity, and you might unwittingly assign your right of publicity to someone else, whether it’s Facebook in terms of service that you haven’t read, if they decide to be more expansive, or if you’re an aspiring actor or model or singer or athlete, in your contract. So it’s something that people really need to be attuned to. And as I said, when people repost things, they may potentially open themselves up to liability. For example, if they’re using celebrities to mash up new videos, they may be liable for a right of publicity violation. Reese Witherspoon has sued over repostings of her Instagram and Twitter, I believe, from jewelers and fashion companies that reposted images of her wearing their products or using their products. So you can imagine individuals doing that as well.

RS: Right now all we have is opt out. If you know something is being misused in some data, you can make a complaint and try to get it withdrawn, and so forth. The onus is on you to discover it, to be aggressive about getting it changed, and so forth. If we had a rule, and this was proposed early on in the age of the internet, of opt in, that before they can use your data for a purpose different than what you intended–in other words, I’m going to pick a restaurant tonight, and that’s all my reason, is I’m giving you information to pick that restaurant, and what I order even, or what have you. I don’t want that shared with someone else who’s marketing this, or exploiting this, and so forth. Why can’t we just have a simple opt-in rule, that before they can use your data for some other purpose, they have to have your permission?

JR: I think that opt in is crucial to preserving privacy in this country and in the internet world. It just hasn’t happened yet as the default. But I think that the opt out will not work. And what we mean by this is that the default should be that your privacy and your information is protected, and if you want to give it up, if you want them to share it, you’re affirmatively giving that permission in every instance in an informed way, rather than just in a blanket, click-through license that no one reads. And I think that’s essential. The right of publicity is just one step in that, by having the default be that people have some control over that identifying information about themselves. Now, some of it is anonymized, and then we need other controls. And the government, of course, can establish a requirement of opt in, that information about people is only revealed when they are specifically asked and informed in every instance, and give permission. But they haven’t done that yet.

RS: The whole question of can you get legislation that protects the individual. And I remember when we had the Financial Services Modernization Act, the thing that allowed commercial and investment banks to get together and merge their activities, and we even had insurance companies forming with banks–all this data was suddenly available, and this was in the late 1990s. Interesting coalition of conservatives like William Safire, who had been Nixon’s speechwriter, was a New York Times columnist; Ed Markey, who’s now a senator from Massachusetts; you could find a whole number of these people, said no, we have to have opt in. If you don’t have opt in, you have no protection. And so it isn’t that this is, oh, maybe we should do it–no, there are active lobbying groups, and the people who want to commercially exploit our private data are the people who always say, no, you can’t do this. And they win, because they have campaign money they can throw at it. So isn’t it really that the solution here that’s available to us is one that we’re not even discussing, let alone implementing? That you should be able to control how the data you offer up, say on Facebook, is used?

JR: Yes, I think that there are multiple things that have to happen. So one is that this right of publicity can be wielded more, and we’re starting to see more lawsuits and pushback in that regard. Second, you’re right, the legislation may be an uphill battle given the various lobbyists. But there may be some market opportunities here for competitors to offer more privacy protected options, and that’s true in other spaces. In the internet, for example, there are search engines that are more protective of privacy than others, and they’re currently free. But it’s also true that people have been sort of lured into giving up their privacy by having these free services, and people need to be willing to pay for privacy. There may be a space where we need to educate people, but we also may need some people who are willing to provide free services that are more privacy protected, maybe nonprofit models.

RS: Check out the book, “The Right of Publicity: Privacy Reimagined for a Public World,” at Harvard University Press. And I’ve been talking to Jennifer Rothman. That’s it for Scheer Intelligence. Thanks to my guest. The producers of Scheer Intelligence are Rebecca Mooney and Joshua Scheer. The engineers at KCRW are Mario Diaz and Kat Yore. I’m Robert Scheer. See you next time.