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.