[MUSIC] Welcome to Lesson 4. Today, we're going to to explore the important legal doctrine of publicity rights as these rights relate to the representation of professional athletes. At the end we'll want you to make the call. We want you to simulate representing a professional athlete as he goes through his peak years, as she moves into her product endorsement agreements, and you counsel her and him accordingly. Publicity rights is the bedrock legal doctrine you'll need to understand to be able to make the call the right way for the athletes we'll be considering. What are publicity rights? The history of publicity rights tells us that it originates from the right of privacy. It recognizes in these cases an athlete's interest in controlling the commercial use of his or her identity, and there, thereby allowing the athlete to profit financially from the use of his or her name or likeness. Since intellectual property rights restrict free expression, however, the right of publicity and the first amendment must co-exist in a healthy tension. Some commercial uses of an athlete's identity may be deemed free expression rather than public publicity rights infringement. The history of publicity rights takes us through some early rights of publicity cases. Davey O'Brien v. Pabst Sales. Pabst Blue Ribbon beer that is. Haelan Labs v. Topps Chewing Gum is the seminal case that really created in the second circuit the right of publicity in the context of trading cards for baseball players. And the major supreme court case, Zacchini v. Scripps-Howard Broadcasting is a case we'll get into as we go through this lesson in speaking with Professor Craig Nard, who is an expert in these areas. Later, rights of publicity cases attenuated what it meant to, to profit off the name, image, likeness, or publicity rights of an athlete, or an entertainer. We have Johnny Carson. Here's Johnny Portable Toilets, world's foremost commodium was found to be an infringement on Johnny's rights. Muhammad Ali v. Playgirl and others listed here under History of Publicity Rights. We will see as we discuss the exploitation of these rights when an infringement exist and when it doesn't and why. As we go forward, what I want you to be thinking about is, how would you construct a right of publicity infringement claim, if you were representing a superstar athlete? What claims under state law would you have? Three elements would have to be established. First of all, you would have to establish the identity. You would have to establish, as the plaintiff. That the defendant had made use of the plaintiff's identity. And the identity is broadly defined to be anything that would identify a product with that athlete. The consent, pretty straight forward, but the plaintiff either has or has not approved the consent of the use of the image, name, likeness, with a product endorsement. Commercial purposes, again, we'll be in tandem with the freedom of expression. That's the hard tension that we'll encounter. But the plaintiff must establish here, that his or her identity, was, in fact, used, for a commercial purpose, in its advertisement of a particular product. So those are the three elements under state right of publicity infringement claims that we'll be talking about during this lesson. Here's some examples. There is the Samsung case. Do you think, on the left there, Vanna White, a robot of Vanna White, do you think that is an infringement on her publicity rights in endorsing a related product? Tony Twist, and Twistelli. A mafioso character. That lead to punitive damages, in the dough case that we're going to talk about with Professor Nard. And there's the real Vanna White on the right. A construct to right of publicity infringement claim, there are many policy considerations here. In addition to the statutory requirements under each of the state's laws. There are five general policy justifications for respecting and defending and upholding the athlete's right of publicity. As you work in this area, well, we have to protect his interest, or her interest, and the, and his dignity, and his autonomy. You have to secure for the plaintiff the commercial value of his or her fame. You have to prevent unjust enrichment of others who are trying to trade off that name. Obviously, you want to prevent harmful or excessive use that could result in a dilution of the athlete's identity. And you want to protect against false suggestions of endorsement or sponsorship. Under federal law we have a different regimen. Now we're more into the nature of protecting the consumer, you ,who are watching a commercial from being confused. Rather than on the other side protecting the athlete from having his right of publicity or her right of publicity infringed. Here we have Section 43 a of the Lanham Act. It prohibits the use of a false description of origin. Any false description would be prohibited, and any false representation that the advertisement relates in the sale of goods and services is related back to the athlete's identity. And the identity is deemed to be the mark, the trademark if you will, at issue. Under federal law there are eight factors that'll be considered when you determine whether or not there's been a violation of the Federal Lanham Act you can see these eight factors here. Each of them gets balanced in different ways in different cases and we'll be talking to Professor Knight about that as this lesson continues. First amendment defences as we go forward. Now you're on the other side. You're representing the artist. You're representing the person who has put out the endorsement, hoping it doesn't violate the right of publicity. Well, the first amendment defense is the one we're going to see more than any other. The distinction between commercial and non-commercial speech is the other one that we're going to see as we go through these cases. And fair use. A well known defense to a right of publicity, or a federal claim. That's what we're going to see as we go through each of these cases. News and fact dissemination obviously is going to get maximum protection under the first amendment. Parody, transformative effect, each of these things we'll be considering in great detail as we go through this lesson so that you can make the call, as to whether you can bring a meaningful claim or defend against one. Finally we look at defenses like, oh celebrities make enough money. We look at other tests that are borrowed from trademark law, and then there are miscellaneous defenses that you'll see us bring the changes on those themes with Professor Nard. Finally we get into some parody, we get into some transformative defense with the cartoons case. Discuss with Professor Nard. We'll ask you to make the call if that's sufficiently transformative that it should get first amendment protection. Those are the kinds of future publicity rights that we're protecting in video games with technological advances. We'll also look at, is it sufficient to have a digital approach to transformation in the creation of a publicity rights video game such as you see here. Gets us back to Ed O'Bannon which we've talked about from the beginning. Gets us into Jim Brown, one of the greatest football players of all time and as well as other technological advances. And we'll explore and we will be interested in hearing what you have to say as to whether the creation of a video game per se using the name, image, likeness of superstar athlete like, a Jim Brown or an Ed O'Bannon, whether that's officially transformative or not, or whether that creates an infringement of the rights of publicity that the superstar athlete holds. So thank you for your continuing attention to this lesson. I think you'll find it perhaps the most interesting one of all. It may be the most difficult for you to get your mind around. But, as we take you through it, as always, we'll have learning objectives. We'll take you through those objectives. We'll answer any questions you might have through our post. And, at the end, for those who are the most serious of students, we will have some hype, not so hypotheticals. And we'll post templated answers that will test your retention and your mastery of these really important concepts as we move through lesson four of our six lessons in representing the professional athlete. So thanks for your continuing attention, and enjoy lesson four. [SOUND]
