President Trump may have to reconsider his assessment of the First Amendment protections if and when his intellectual property rights are threatened. One of such intellectual property rights is the right of publicity. President Trump is, regardless of your viewpoint, a celebrity who, during his Presidency or after he leaves office, will likely capitalize on his right of publicity. The First Amendment Right to free expression, however, can be a bar to his exploitations of such rights.
Right of Publicity
The right of publicity allows one to control and/or monetize his/her name, voice, signature, photograph, likeness, or identity. In some states, such as California and New York, being famous is not a requirement. In California, under the statute and common law rights, commercial use of another’s name, voice, signature, photograph, or likeness, in any manner, without consent, can carry monitory liability.
Transformative Use: The First Amendment Defense to Right of Publicity
The use of one’s likenesses may constitute protected First Amendment activity involving an artistic work, and thus one’s right of publicity claim is completely barred. For instance, video games have been found to be expressive works entitled to as much First Amendment protection as the most profound literature. See, e.g., Kirby v. Sega of America, Inc. (2006) 144 Cal.App.4th 47, 58 (Kirby). However, the infringer’s First Amendment right of free expression defense to right of publicity is always in tension with the rights of the celebrity’s right to control the commercial exploitation of his/her likeness.
In Comedy III Productions, Inc. v. Gary Saderup, Inc., (2001) 25 Cal.4th 387, 391 (Comedy III), the California Supreme Court directly confronted the tension between the First Amendment right of free expression and the right of publicity. In Comedy III, the plaintiff was the owner of the rights to the comedy act known as The Three Stooges. The defendant was an artist who sold lithographs and T-shirts bearing a likeness of The Three Stooges reproduced from a charcoal drawing the artist had created. The Court’s inquiry was “whether the celebrity’s likeness is one of the ‘raw materials’ from which an original work is synthesized, or whether the depiction or imitation of the celebrity is the very sum and substance of the work in question. We ask, in other words, whether a 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.” (Id. at p. 406.)
In Kirby v. Sega of America, Inc. (2006) 144 Cal.App.4th 47, 58 (Kirby), Plaintiff celebrity, the lead singer of a retro-funk-dance musical group, sued defendant distributors of a video game, alleging misappropriation of her likeness and identity in violation of federal and state law. The court concluded that the video game character was more than a mere likeness or literal depiction of the celebrity. Because the celebrity’s claims were subject to a First Amendment defense, and the video game was protected speech, her state common law and statutory right of publicity claims, as well as her Lanham Act claim, were barred.
In No Doubt v. Activision Publishing, Inc., (2011) 192 Cal. App. 4th 1018 (No Doubt), Plaintiff rock band sued defendant publisher based on the publisher’s release of a videogame featuring computer-generated images of the band’s members. The game allowed players to simulate performing in a rock band in time with popular songs. By choosing from a number of playable characters, known as “avatars,” players could be a guitarist, a singer, or a drummer. The court held that the publisher’s use of the band’s avatars was not transformative enough to defeat the Plaintiff’s right of publicity claim. It concluded that the Publisher’s avatars were simply precise computer-generated reproductions of the band members. In essence, the avatars were not the publisher’s own artistic expression. Thus, the band’s right of publicity claim was not defeated by the publisher’s assertion of a First Amendment defense.
President Trump’s right of publicity will likely be challenged due to his dual President-celebrity persona. He has demonstrated that his intellectual property rights are of great value to him and he will do his utmost to protect them. Potential proprietors, utilizing the state-of-the-art social media Apps, must incorporate enough transformative manipulations of his likeness in order to shield themselves by the First Amendment.
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