Should Right of Publicity Protection Be Extended to Actors in the Characters Which They Portray
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DePaul Journal of Art, Technology & Intellectual Property Law Volume 9 Issue 2 Spring 1999 Article 4 Should Right of Publicity Protection be Extended to Actors in the Characters Which They Portray Angela D. Cook Follow this and additional works at: https://via.library.depaul.edu/jatip Recommended Citation Angela D. Cook, Should Right of Publicity Protection be Extended to Actors in the Characters Which They Portray, 9 DePaul J. Art, Tech. & Intell. Prop. L. 309 (1999) Available at: https://via.library.depaul.edu/jatip/vol9/iss2/4 This Case Notes and Comments is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Journal of Art, Technology & Intellectual Property Law by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. Cook: Should Right of Publicity Protection be Extended to Actors in the SHOULD RIGHT OF PUBLICITY PROTECTION BE EXTENDED TO ACTORS IN THE CHARACTERS WHICH THEY PORTRAY INTRODUCTION "Hello... Newman." "Get OUT!" "It's Shrinkage!" "Giddy Up!" Millions of Americans who faithfully watched the television show Seinfeld identify these "catch phrases" with the characters that spoke them episode after episode on the most watched sitcom on television.' Pursuant to the Federal Copyright Statute, these characters are protected by the Seinfeld copyright, as they appear in the "original work[s] of authorship fixed in a tangible medium of expression."2 Additionally, certain distinct characters may receive copyright protection when they are removed from their original works and then placed in an unrelated work.3 In such cases, courts 1 Tom Gliatto, Much Ado About Nothing, PEOPLE, Jan. 12, 1998, 119, 120. Roughly 32 million people tuned in to Seinfeld each week. For the benefit of those who strayed from the "Must See TV" line-up, these "catch phrases" were spoken weekly by Jerry Seinfeld (playing the self-entitled star); Julia Louis- Dreyfus (Elaine Benes); Jason Alexander (George Costanza); and Michael Richards (Cosmo Kramer), respectively. 2 17 U.S.C. § 102 (1976). 3 When determining the copyrightability of motion picture characters, courts have applied both the "story being told" and "character delineation" tests. See Dean D. Niro, Protecting Charactersthrough Copyright Law: Paving a New Road Upon Which Literary, Graphic, and Motion Picture Characters Can All Travel, 41 DePaul L. Rev. 359 (1992). Courts agree on* one issue when determining the copyrightability of a character: "To be protected by copyright apart from the story in which it originally appeared, a character must be more than an idea in the public domain." Niro, at 360. See also Anderson v. Stallone, 309 Published by Via Sapientiae, 2016 1 DePaul Journal of Art, Technology & Intellectual Property Law, Vol. 9, Iss. 2 [2016], Art. 4 310 DEPA UL J ART & ENT. LAW [Vol. IX:309 have provided copyright owners with protection from infringement of the characters' physical likenesses,4 speaking mannerisms,5 personalities, methods of interacting with others6 and physical surroundings.' For example, Castle Rock Entertainment, the owner of the Seinfeld copyright,8 may seek redress against anyone who, without authorization, displays the Seinfeld character, Kramer, as he appears in the original work of authorship, on a tee shirt. However, copyright law does not provide the actor Michael Richards, who plays the part of Kramer, the means by which to seek redress for the unauthorized use of his character on the same tee shirt. Thus, the question arises: Since actors do not receive copyright protection of the characters which they play, should these characters be protected by the right of publicity? The right of publicity "signif[ies] the right of an individual, especially a public figure or a celebrity, to control the commercial value and exploitation of his [or her] name and picture or likeness and to prevent others from unfairly appropriating this value for commercial benefit." ' The doctrine is based on the recognition that "a famous individual's name, likeness, and endorsement carry value and an unauthorized use harms the person both by diluting the value of the name and depriving that individual of compensation."'" The theory for extending the right of publicity to 11 U.S.P.Q.2d (BNA) 1161 (C.D. Cal. 1989) (The court applied both the character delineation and the story being told tests when providing copyright protection for the characters from the motion picture, Rocky.); Sid & Marty Krofft Television Prods. v. McDonald's Corp., 562 F.2d 1157 (9th Cir. 1977) (The Ninth Circuit applied the character delineation test, with emphasis on the character's "total concept and feel" in its decision to provide copyright protection for the character, H.R. Pufnstuf). 4 See, e.g., Universal City Studios v. J.A.R. Sales, Inc., 216 U.S.P.Q. (BNA) 679 (C.D. Cal. 1982)(E.T.). 5 Anderson, 11 U.S.P.Q.2d (BNA) at 1167. 6 Sid & Marty Krofft Television Prods., 562 F.2d at 1166-1169. 71d. 8 The Library of Congress Catalogs (visited Oct. 22, 1998) http://lcweb.loc.gov/cgi-bin/zgate. 9 Estate ofPresley v. Russen, 513 F. Supp. 1339, 1353 (D.N.J. 1981). 10 McFarlandv. Miller, 14 F.3d 912, 919 (3d Cir. 1994). https://via.library.depaul.edu/jatip/vol9/iss2/4 2 Cook: Should Right of Publicity Protection be Extended to Actors in the 1999] RIGHT OF PUBLICITY PROTECTION provide redress for misappropriations of an actor's character stems from the belief that in certain situations, an actor may develop the character in a way so distinctive as to elicit recognition of the actor from use of the character alone.1 As the purpose of the right of publicity is to prevent exploitation of an individual," it should then follow that the doctrine should protect against any commercial misappropriation, such as use of an actor's character, that exploits an individual. Although the right of publicity is a well-recognized doctrine and about half of the states have right of publicity statutes, some academics and practitioners are opposed to the doctrine. Scholars adverse to the right of publicity argue that actors do not create their characters, rather, characters are developed by studios, producers, writers, and the audiences who perceive them. 3 However, "[r]egardless of the input from others, celebrities still remain the vehicles through which their images are conveyed to the public." 4 After all, using the above hypothetical, the recognition of a "Kramer" tee shirt is elicited by the public's association of the character with Michael Richard's face." Although the script is written, the timing is rehearsed, and the movements are directed, the actor's interpretation and presentation of these elements form the fictional character into an actual person in the public's mind. Accordingly, Seinfeld's writers' formulation of the script does not, in and of itself, create the aforementioned "catch phrases." The actor's delivery, personality and energy are just a few factors that 11 See id. at 920. The court held that "originality plays a role" when deciding whether the character is associated with the actor who portrayed the part. Id. 12 Presley, 513 F. Supp. at 1353. 13 See, e.g., Rosemary J.Coombe, Author/izing the Celebrity: Publicity Rights Postmodern Politics, and Unauthorized Genders, 10 Cardozo Arts & Ent. L.J. 365, 368 (1992); Michael Madow, PrivateOwnership of Public Image: PopularCulture and PublicityRights, 18 Calif. L. Rev. 127, 182-196 (1993). 14 Roberta Rosenthal Kwall, Fame, 73 Ind. L.J. 1, 42 (1997). 15 See Kwall, supra note 14, at 41-43. Professor Kwall notes that use of a celebrity's likeness to appropriate a fictional character that he or she played supports the position that "the character is as much the creation of the individual playing the character as the author of the script and the show's producer." Published by Via Sapientiae, 2016 3 DePaul Journal of Art, Technology & Intellectual Property Law, Vol. 9, Iss. 2 [2016], Art. 4 DEPAUL J. ART& ENT. LAW [Vol. IX:309 contribute to the construction of the character identified by these phrases. Nonetheless, not every character is so closely associated with the actor who plays the role that the character elicits recognition of the actor who plays the part. Thus, this Case Note proposes that a celebrity's right of publicity should extend beyond the celebrity's personal image and encompass characters that have become so associated with the actor as to elicit recognition of the celebrity solely through appropriation of the character. 6 An individual may also seek redress for unauthorized commercial uses of his or her persona under other theories of law, such as §43 of the Lanham Act,1 7 state unfair competition claims,18 and state misappropriation claims; however, these causes of action will not be discussed 19 here. A few recent decisions have provided redress for actors upon appropriation of their closely associated character, without holding that such protection was conferred by the actor's right of publicity. 0 This Case Note takes the position that the policies and goals underlying the right of publicity not only allow, but necessitate the protection of any misappropriation of an 16 McFarland, 14 F.3d 912. The Third Circuit is currently the only jurisdiction to adopt this test. 17 This section of the Lanham Act prohibits the use of any word, term, name, symbol or device that is a "false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person." 15 U.S.C.