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Sad Michigan Fan”: What Accidentally Becoming an Internet Celebrity Means in Terms of Right of Publicity and Copyright

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Sad Michigan Fan”: What Accidentally Becoming an Internet Celebrity Means in Terms of Right of Publicity and Copyright THE “SAD MICHIGAN FAN”: WHAT ACCIDENTALLY BECOMING AN INTERNET CELEBRITY MEANS IN TERMS OF RIGHT OF PUBLICITY AND COPYRIGHT Caitlyn Slater* 2017 MICH. ST. L. REV. 865 ABSTRACT In October 2015, Chris Baldwin was caught on camera after an improbable play had Michigan State University defeating University of Michigan in the final seconds of the rivalry football game. Overnight, Baldwin’s reaction was an internet sensation, and his face was integrated into the word “OHIO” printed on a t-shirt supporting University of Michigan’s rivalry with The Ohio State University. Uncertainty in the “patchwork” of state right of publicity laws makes it unclear whether Baldwin would have had a successful claim to protect his image from being used for profit without his consent—especially when some jurisdictions find the state right of publicity preempted by federal copyright law. The copyrights in this case were owned by both ESPN and University of Michigan, which both could have instituted a copyright infringement claim against the t-shirt company for the unauthorized use of an image from the copyrighted broadcasts. In today’s technological age, anyone could be caught on camera and face the same situation as Chris Baldwin. The person who faces this should have a cause of action that is not preempted by federal law and is uniform regardless of where the event occurs— * Senior Managing Editor, Michigan State Law Review; J.D. 2018, Michigan State University College of Law; B.S. 2015, Northeastern University. The author would like to thank Professor Nancy Costello for her invaluable insight, advice, and time throughout the research, writing, and publication process. The author would also like to thank the members of the Michigan State Law Review for the time and effort they put into reviewing and editing this Comment. The author would like to thank her parents, Chris and Trisha Slater; her fiancé, Josh Silverblatt; and her sisters, Jessica and Ciera Slater, for their love and support throughout this process and throughout law school. She would also like to thank them for helping her acquire most of the tickets cited in this Comment by going to the specified games with her. Finally, the author would like to thank Anne Miller and Marissa Kreutzfeld for acquiring the University of Michigan tickets cited in this Comment. 866 Michigan State Law Review 2017 meaning there needs to be a federal right of publicity statute that can coexist with federal copyright law. In addition to the federal right of publicity and copyright regime, each ticketed event should sell tickets that include express language that the sponsor of the event can use the ticket holder’s image and likeness without restriction when it is captured by the sponsor’s photographers and videographers. While alleged infringers can rely on First Amendment defenses, such as transformativeness for the right of publicity claim and fair use for the copyright infringement claim, this scheme of dual federal rights and a contractual obligation will protect all parties involved and still allow the dissemination of information under the First Amendment. TABLE OF CONTENTS INTRODUCTION ............................................................................... 867 I. HISTORY OF THE RIGHT OF PUBLICITY .................................... 872 A. The Development of the Right of Publicity..................... 873 B. State Right of Publicity Protections Range from Statutes, to Common Law, to Nothing ............................ 877 1. Twenty-Two States Have Codified the Right of Publicity into a Statute .............................................. 877 2. Nineteen States Use a Common Law Right of Publicity ................................................................ 879 C. First Amendment Limitation to Right of Publicity ......... 882 1. “Transformativeness” as a Defense to Right of Publicity Violations ..................................... 883 2. Other Tests Available to the Courts: Newsworthiness, Profits, and Core Speech .............. 885 II. COPYRIGHT LAW AND ITS (SOMETIMES) PREEMPTION OF THE RIGHT OF PUBLICITY ................................................... 888 A. History of Federal Copyright Law................................... 889 B. Copyright’s Preemption of State Law ............................. 892 1. Cases in Which Courts Found that Right of Publicity Was Preempted .......................................... 894 2. Cases in Which Courts Found that Right of Publicity Was Not Preempted ................................... 897 C. Fair Use Defense to the Use of Copyrighted Material .... 900 D. The Contractual Relationship Between Right of Publicity and Copyright in Sports ................................... 901 III. A BRIEF INTERLUDE INTO THE LANHAM ACT ......................... 904 The “Sad Michigan Fan” 867 IV. MAKING ROOM FOR BOTH THE RIGHT OF PUBLICITY AND COPYRIGHT PROTECTION ................................................. 906 A. The Effect on the Ordinary Person’s Right of Publicity .. 907 1. The “Bad Luck Brian” Meme.................................... 908 2. The “Ain’t Nobody Got Time for That” Meme ......... 909 3. The “Scumbag Steve” Meme ..................................... 909 4. “Bye Ayesha” T-Shirt ................................................ 910 B. The Effect on the Owner of the Copyrighted Image and Broadcast ................................................................... 912 C. Solution: A Federal Right of Publicity Statute that Coexists with Copyright Protections................................ 913 D. Counterarguments: Protecting Monopolies on the Ordinary Person’s Image and Overprotecting Copyrights Hinders Free Speech...................................... 916 1. The Ordinary Person Caught on Camera Is Not Famous and Should Not Have a Right of Publicity ..................................................................... 916 2. Protecting Images Through Right of Publicity Laws Hinders Free Speech Under the First Amendment ................................................................ 918 3. The Protection of Images Through Copyright Law Hinders Free Speech Under the First Amendment ................................................................ 921 CONCLUSION ................................................................................... 925 INTRODUCTION On October 17, 2015, the Michigan State University football team traveled to Ann Arbor for the 108th battle for the Paul Bunyan trophy, the mascot of the annual Michigan State versus University of Michigan football game.1 With ten seconds left in the game, University of Michigan was ahead 23 – 212 and was set to punt the 1. No. 7 Spartans, No. 12 Wolverines Battle for the Paul Bunyan Trophy in Big East Division Showdown, MSU SPARTANS (Oct. 15, 2015), http://www.msuspartans.com/sports/m-footbl/spec-rel/101515aab.html [https:// perma.cc/8V4X-7U2A]. See also CFB Fans, Michigan State vs Michigan Full Game 17/10/2015 NCAA Football Week 7, YOUTUBE (Oct. 18, 2015), https://www.youtube.com/watch?v=Fa60YNgAG-Q [https://perma.cc/ AY4P-Y6TQ] (showing the entire football game). 2. Dan Murphy, Michigan State Stuns Michigan with Final-Play Fumble Return, ESPN (Oct. 18, 2015), http://www.espn.com/college-football/ recap?gameId=400763542 [https://perma.cc/P3UM-J8J6]. 868 Michigan State Law Review 2017 ball away on fourth down on its own forty yard line. 3 Dejected, with only a 0.2% chance to win,4 Michigan State resigned itself to the loss and delivered the Paul Bunyan trophy to the Wolverines.5 But University of Michigan punter Blake O’Neill bobbled the snap, and his off balance kick landed the ball straight into the hands of Michigan State’s Jalen Watts-Jackson.6 Watts-Jackson ran the ball thirty-eight yards into the end zone for an improbable, and almost impossible, game-winning play.7 After the touchdown, in the stunned silence of the stadium, television cameras rested on the face of stricken University of Michigan fan Chris Baldwin, who stood with his hands pressed to his head and mouth draped open in shocked disbelief.8 Within hours, Baldwin’s face was splashed across the Internet, making him an instant overnight celebrity, an icon in the college football world9—dubbing him the “Sad Michigan Fan.”10 Cincy Shirts, an Ohio-based T-shirt company that supported University of Michigan’s archrival Ohio State University, saw an opportunity.11 It seized the frozen image of Baldwin in the now nicknamed “surrender 3. See CFB Fans, supra note 1. The specific play referenced can be found beginning at time 2:41:40. Id. 4. Kevin Trahan, Michigan State Was So Sure It Had Lost to Michigan, It Had Already Given Away the Trophy, SB NATION (Oct. 18, 2015, 8:39 AM), http://www.sbnation.com/college-football/2015/10/17/9562197/michigan-state- michigan-paul-bunyan-trophy [https://perma.cc/JN86-ATEB]. 5. See id. 6. See Murphy, supra note 2. 7. See id.; see also Michigan v. Michigan State - Play-by-Play, ESPN, http://www.espn.com/college-football/playbyplay?gameId=400763542 [https://perma.cc/M8K4-WKLB] (last visited Nov. 6, 2017); CFB Fans, supra note 1 (showing the specific bobbled punt returned for a touchdown at 2:41:48). 8. See CFB Fans, supra note 1. The specific reaction referenced can be found beginning at time 2:41:59. Id. 9. See Shocked in the Stands: U of M Fan Identified, FOX 17 NEWS (Oct. 19, 2015, 8:08 PM), http://fox17online.com/2015/10/19/shocked-in-the-stands-u-of- m-fan-identified/ [https://perma.cc/QB5Z-TS9N]. 10. See Michigan State and Ohio State Fans Get Creative, Immortalize “Sad Michigan Fan” in Merch, HERO
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