The Good Wife, The Right of Publicity, And Why Writers Should Be Scared

A recent episode of The Good Wife, a consistently good legal drama, focused on what I think is one of the most important issues affecting the writing and publishing industry today: the right of publicity. In the show, a character similar to Mark Zuckerberg didn’t like the way he was portrayed in a movie similar to The Social Network. He sued for defamation. Enter our hero law firm.

The lawyers realized pretty quickly that this client was never going to win a defamation case. He was a public figure, like it or not, and therefore the First Amendment squashed the defamation claim pretty cleanly. They’d have to prove actual malice, and that’s really hard to prove.

Then they got an idea. An awful idea. The lawyers got a wonderful awful idea. They’d sue under the right of publicity. How did they do it? And why is the right of publicity such a danger to writers? Let me explain.

Nineteen states in the U.S. have publicity rights statutes. The right of publicity is the right of every individual to control any commercial use of their name, voice, signature, photograph, image, likeness, or some other identifying aspect. In other words, if the purpose of using someone in your book is to make money off their name, you’re at risk. The idea is that you’re unfairly competing with the person or their estate. The cases on these issue consider the person’s publicity right to be equal to other intellectual property rights, like copyright, trademark and patent.

This right is subject to the First Amendment in the U.S. The big defense to these cases is that the use was “transformative.” That is, that the “product containing a celebrity’s likeness is so transformed that it has become primarily the defendant’s own expression rather than the celebrity’s likeness.” (From Comedy III Productions, Inc. v. Saderup). If the use of the person is the sum and substance of the work, then it’s not transformative.

There have been a slew of recent cases involving publicity rights that show how dangerous these rights are to writers, and why we should follow these cases closely.

• The Tolkien Estate is suing Stephen Hilliard for a historical fiction book he’s written with a number of historical characters, including a fictionalized version of Tolkien. They say the book has violated Tolkien’s publicity rights and that the cover art and typefaces of the book are similar to Tolkien’s so that they are unfair competition. If they win, historical fiction is in danger. Writers would have to get approval from the estates of every person mentioned in their novels.

• University of Nebraska former quarterback Sam Keller is heading up a class action lawsuit against Electronic Arts and the NCAA for using his image in a video game. Although the players’ names aren’t used, they used the same jersey number, height, weight, and state as the real players. Since the players are amateurs, they got zippo from this multimillion dollar venture. The NCAA gets some unspecified amount for allowing this. The movie industry has come down on both sides of this issue. MPAA says the use is protected by the First Amendment. They say movies like Forrest Gump, Frost/Nixon and Citizen Kane will be at risk if the players win. They say biographies and documentaries might not survive. SAG, AFTRA and the WGA say that the use of the players was solely commercial. They say that allowing this use will allow individuals to be used in pornography and other exploitative works. They say that “public affairs” and “public interest” defenses will apply to biographies and documentaries. This case will affect every writer who wants to use a celebrity or real person in their books.

• No Doubt v. Activision Publishing, Inc. was a decision handed down on February 15, 2011. The group No Doubt had agreed to license their images for the game Band Hero, but only for three specific songs that they chose. The game designer failed to tell them that there was an “unlock” feature that would allow their avatars to be used for playing any song in the game’s songbook. They cried foul and the court agreed. The court said the use was not transformative. “The game does not permit players to alter the No Doubt avatars in any respect; they remain at all times immutable images of the real celebrity musicians, in stark contrast to the ‘fanciful, creative characters’ in [two other cases].” Because the game maker used the band’s images to market the game and therefore appeal to the band’s fan base, “the expressive elements of the game remain ‘manifestly subordinated to the overall goal of creating a conventional portrait of [NoDoubt] so as to commercially exploit [its] fame.’” (Quoting that Comedy III case).

• A 60-year-old maid named Ablene Cooper is suing Kathryn Stockett and Penguin Group USA for the book The Help, which features a heroic maid named Aibileen Clark. She says the author based the character on her and has appropriated her name and image. She seeks $75,000 in damages. Penguin says it’s a work of fiction and that she has no case. And I wonder about this one. Since she’s not a celebrity, how would using her image damage her? She doesn’t have a commercial image to protect. If she wins, any novel in any way inspired by anyone living or dead will be at risk. That means every novel, because all authors use real life and transform it into our own image. Watch this one closely. Hopefully Penguin will fight for our rights and not just settle. If they pay one dime, expect everyone in every author’s life to come out of the woodwork and sue.

That brings me back to The Good Wife. The lawyers deposed an advertiser who had bought product placement in the movie. They asked if he would have bought the advertising if the celebrity’s name were not associated with the movie. He said of course not. It was a good call, and the studio settled fast. I love a show that covers real issues and gets them right.

I think the line will be drawn between ordinary people and business people/celebrities. If the person has a business or public image that they use to sell their products or work, then they will have the right to protect their image. So if you’re writing about anyone with a public image, you’d best transform their image and make it your own work of art. And if you use their name to sell your work, watch out. I suspect that using Uncle Joe as the model for your wizard character will still be okay.

But take nothing for granted. In the U.S., commercial interests seem to always prevail over anything else.

Literary agent Peter Cox and I talked more about this issue in The Debriefer, my Radio Litopia show, so do listen in. We also talked about the latest libel tourism and how you might get thrown into jail in France or Italy for libel even if you’ve never written there.

To recap the risk if all these cases are won, the following will be pretty much off limits:

• Historical fiction
• Nonfiction where any real person is mentioned
• Documentary
• Unauthorized biographies
• Biographies where any real person is mentioned
• All fiction in any way inspired by any real person (in other words, all fiction)

What’s left to write? How-to books, prescriptive nonfiction, some picture books. Not much else that I can think of. Beware the right of publicity and tremble in your boots. Stay tuned.

Fairly Legal Says You Can’t Copyright a Recipe – They’re Only Partly Right

I’ve found some peace with the show Fairly Legal, about a woman they call a mediator who does nothing that even vaguely resembles mediation. The way I’ve done it (because I still like the characters and the legal issues) is that I just keep telling myself she’s something new – a unique entity in the law.

In my mind, I call her a Conciliator. The weird part is, I think there’s room in the legal system for someone like this. It would be sort of a mediator, sort of an arbitrator, and sort of an investigator. There’s nothing like this now, and I suspect that this show might spark such an entity into being. She’s closest to an arbitrator, because arbitrators can investigate to some extent and in a very limited way. So I’m not writing to complain about how they went right off a cliff on the whole mediator concept.

Instead, I’m writing about a recent show involving a barbecue sauce recipe. The conciliator (I absolutely refuse to call her a mediator) made this statement: “You can’t copyright a recipe.” I shook my head, first because if she were a mediator she couldn’t give legal advice (okay, I’m going to complain a little), but second because she was wrong.

It’s true that you can’t copyright a list of ingredients. But you can absolutely copyright anything you personalize – the instructions, illustrations, photographs, comments, explanations – can absolutely be copyrighted. Basically, anything that is literary expression is subject to copyright. Also, a collection of recipes can be copyrighted. The only problem is, if you have a secret ingredient, applying for a copyright will necessarily require you to disclose the secret. So you might not want to apply for a copyright if you have a secret you want to protect.

There are other legal protections for recipes that might be even better than a copyright. Coca Cola and the KFC secret recipe are trade secrets. Nobody is allowed to tell the ingredients, processes or methods to a trade secret. So if you use your secret recipe in your bakery or restaurant, you can protect your recipe from disclosure. Make sure your employees sign an agreement recognizing they can’t disclose trade secrets, and make sure you zip your lips. If you give the recipe to the Girl Scouts for their fundraising recipe book, your trade secret is gone.

The other possibility is a patent. The recipe has to include something that’s not obvious, so most recipes won’t qualify. Once it’s been disclosed, you only have one year to apply, so if you baked your secret pie for the PTA, your clock is ticking. Mostly, patents won’t be available for recipes. Patents that have been successful usually involve things like ingredients or processes to make food lower calorie, have a longer shelf life, keep a better shape or texture, or work in new devices (microwaves, convection ovens, or whatever the latest technology is).

How many chefs watched that show and remember the phrase, “You can’t copyright a recipe?” How many won’t bother suing when someone copies their beautifully written directions and processes as a result of bad TV legal advice? If someone uses your recipe in their cookbook, contact a lawyer who knows about intellectual property.

If the writers would just buy a copy of The Writer's Guide to the Courtroom: Let's Quill All the Lawyers, they'd have a shot at getting this stuff right. :)

Never, ever get your legal advice from watching a TV show. Or reading a blog for that matter.

The “V” Defrocking - Even Priests Get Due Process

Granted, the science fiction show “V” isn’t big on realism, but they committed a giant honking clunker last night when they showed their priest character getting laicized the day after he made a speech against the alien Visitors. The plotline is that Anna, the head of the Visitors, got to the Catholic Church in Rome by offering to let them send missionaries to their ships. The idea of so many new converts was appealing, no doubt. But her deal was that they had to stop priests from speaking out against them. The whole purpose was to stop one activist priest who is onto their lizardly nature and dastardly plans.

So our hero priest refuses to be cowed, makes another speech, and the next day he gets a letter that he’s been laicized. The elder priest who hands him the letter demands his collar. Bam! He’s no longer a priest.

I’m sitting there smacking my head. What the heck? As someone who was raised Catholic (lapsed), I know that they have rules and procedures for everything. They move at a glacier’s pace on any major decision. Remember all those pedophile priests they couldn’t get rid of? There’s a reason why.

So I looked it up. It took me about 15 minutes on the great wide interwebs to find out how a priest is legally defrocked. The writers could have bothered to at least look at Wikipedia, but there are better sources out there.

Laicization takes years. The church actually “streamlined” the process relating to pedophiles in 2001, but it’s still a long procedure. For those cases, the Congregation for the Doctrine of the Faith handles the defrocking. Even with abusers, the bishops can’t just zap the offending priests.

The laicization process involves sending a letter to the priest telling them the process is beginning. They then go through a tribunal. They’re given the right to canonical counsel (priest lawyers) who will defend them. The Church has to provide lots of documentation on the grounds. Assessors determine if the case is valid or not. If they think it is, then the Cardinal has to approve it. Only then will it go to the Pope with the Cardinal’s recommendation. The Pope is the only one who has the ability to laicize a priest or deacon.

The law governing laicization is the Code of Canon Law. A cardinal interviewed in a news story about the glacial pace of removing pedophiles said, "The right of a priest to defend himself is sacred, including in these cases. The right to defend oneself is internationally recognized and always preserved."

Due process is sacred, even in a religious institution.

Lazy writing is weak writing. Instead of staying involved in the story I was sucked right back into reality with that humongous clunker. It was such an easy fix that there’s no excuse.

What the bishops can do is remove an offending priest from ministering to a parish. And that’s what “V” should have done. Like any employer, the church can give you a totally crappy job to try to make you quit. They could have transferred him to Siberia, given him office work, or made him in charge of polishing collection plates and I’ve have believed it.

Get it right, people!

If My Character Has Amnesia, How Do they Get ID? Can They Get a Job?

On Litopia Writer’s Colony, I have my own section, Donna’s Domain where members can ask me questions about how the law affects their characters, plot, and settings. Here’s a question we answered on The Debriefer (my show on Radio Litopia – episode where I answered isn’t up yet but should be soon) and I thought it applied to enough stories that I’d also address it here.

Litopia’s J Katrin wrote:

“I have a question about issues of legal identity. If a character cannot remember who she is, and authorities are for whatever reason unable to discover her identity, what options are there for obtaining gainful employment, etc.? Without a birth certificate, you can't be issued an SSN, so what can you do if you don't have someone to take care of you and aren't considered dangerous enough to house in a prison or psych ward?”

Well, I found a real life story that may help with the answer. There’s a man they call Benjamin Kyle who has amnesia. He’s around 60 and they found him in 2004, naked, lying by a trash container. They’ve tried everything - DNA, prints, dental records, FBI databases, NCIC – and they haven’t found any clues to his identity. He lived in a homeless shelter for three years, then a nurse decided to step in and help. Since then, he’s even been on Dr. Phil, had all kinds of medical treatment, and still no luck.

Here’s where the story touches on J Katrin’s question. Congressman Kilpatrick has been trying to help him get a Social Security card. Here’s what Kyle says happened: "They have talked and talked to [the] Social Security [office], and they are adamant that the presumption is that I already have a Social Security card, so they cannot give me another one. They have asked for medical reports, and we have given them all that. Still, nothing."

Without a Social Security card, he can’t legally work. He can’t get a passport. Heck, he can’t prove he is a U.S. citizen. He works odd jobs and lives with the nurse who is helping him. He relies on a church for food donations.

I asked a Florida lawyer I know who handles Social Security issues, Lyle Masnikoff, and here’s what he said about it: “This Social Security question is very interesting. If the person can be identified even though they don't know who they are, I would think that the person would use the same SS# and info to work as prior to the amnesia. However, if no one can identify the person, the person would have to get a new SS # which is not legal unless you have permission from a judge and a court order. Individuals placed in Witness Protection sometimes receive a new social security number, but other than that the chances are slim.”

So there you have it, from real life and from an expert. In these days of Homeland Security, immigration concerns, and crackdowns on employers hiring undocumented workers, your character with amnesia will have a tough time. Their best bet will be to hire a lawyer to try to get a court order to issue a new Social Security card. Otherwise, they’ll have no driver’s license, passport, work permit, entitlement to government benefits – nothing. They’ll have to rely on the kindness of strangers until their memory returns.

A great plotline, don’t you agree? Fantastic question, J Katrin!

If you have questions like this one about how the law affects your story, ask in the comments here or check out Donna’s Domain on Litopia.