The Right of Publicity: Cashing in on Being Famous

In part 1 of my interview with Kristina Dinerman we discussed Katherine Heigl, Michael Jordan and Elvis impersonators, as well as the impact social media has had on rights of publicity in the Internet age. In this final installment of our conversation Dinerman discusses how aggressive celebrities are becoming with respect to protecting their right of publicity in the age of social media, whether the Supreme Court may interject itself at some point and decide whether tweeting constitutes commercial speech, and the growing phenomenon of people becoming celebrities  as the result of being famous for, well… being famous.

QUINN: So what do you think is going to wind up happening longer term with the Internet and right of publicity? If you were looking into your crystal ball say maybe over the short term, intermediate, and then long term? I suspect we’re going to see more of these cases but what kind of cases do you think we’re going to be seeing?

DINERMAN: Well, one of the things that is happening is that the line between commercial and noncommercial speech is continuing to blur. We are going to see more cases that involve advertising integrated into content. As advertising continues to develop I think that you’re going to see more crossover between celebrities who are trying to self promote and companies who are trying to increase awareness of their brand. And there will continue to be more intersection between the two. Take award shows for example such as the recent American Music Awards. The next day you see photos of celebrities in what they wore and you see brands trying to to connect to that, with ads like “get the look.”   I think that you’re going to see this continued intersection between advertising and social media and it will be interesting to see how celebrities will and will not allow companies to use their pictures, their images and their names.

QUINN: Do you see that celebrities are more aggressive now than they’ve ever been because of the Internet and social media?

DINERMAN: Celebrities have always been very aggressive to protect their rights of publicity. This goes back to something I said before that brand association is a way that celebrities make a lot of their income so they are self interested in protecting their rights of publicity. So I think that there’s not necessarily going to be more litigation but I do think that there will be different kinds of litigation and different kinds of questions. A really interesting example of this was the Samsung Genome Project App that they did on Facebook in connection with the Olympics. This was an app that showed Facebook users how they were connected to Olympians and used names and images of Olympians in the promotion of the app. The California state court found that it was noncommercial speech and thereby protected by the First Amendment. But that kind of application is going to be more common in the future. In this case Samsung had admitted that the purpose of doing this app was to generate more users for their Facebook site. And the court still found that it was noncommercial speech. If you compare that case with the Jordan case you can see that there is confusion as to what is considered commercial speech. Looking at the intent, if the intent is commercial, the Seventh Circuit would have found that it was commercial speech. But since rights of publicity varies from jurisdiction to jurisdiction you might have different outcomes depending on the jurisdiction you’re in.

QUINN: And it’s been quite a while since the Supreme Court has heard one of these cases, right?

DINERMAN: They’ve only heard one of these cases.

QUINN: Yes. And that’s been what, over 30 years ago right?

DINERMAN: Yes, its been a long time.

QUINN: I think it was with the Human Cannonball case, right?

DINERMAN: Yes, the Human Cannonball case, that’s correct It was Zacchini v. Scripps-Howard Broadcasting from 1977.

[PLI]

QUINN: So I wonder whether—do you think that the Supreme Court is going to get more involved in this as it moves forward because it does seem, as you said in different jurisdictions there are different standards. Or that Congress might get involved to try and create some national legislation.

DINERMAN: It’s definitely possible that Congress might get involved to create national legislation at some point. Because we are in a situation where we have different laws in different jurisdictions and this promotes jurisdiction shopping. So at some point Congress might act and might enact a federal law or the Supreme Court may address a case on rights of publicity.

QUINN: I just wonder how much it’s going to grow, because celebrities – how do I want to say this – just observing what goes on in D.C., the more connected you are the more access you have and that shouldn’t be hardly surprising and it isn’t to suggest that there are nefarious activities going on, but if you’re in Congress and you see these celebrities and they happen to be at your fund raisers or what have you, it would seem to me that at some point if social media continues to grow that there will need to be some kind of additional legislation or undertaking. And I’ve been shocked for a very long time why there hasn’t been more concern nationally with paparazzi. I understand that maybe part of the reason is that celebrities want to use the paparazzi to some extent to promote themselves, so maybe it’s not always the antagonistic relationship that it might otherwise seem.

DINERMAN: Yes. There’s a real tension between the two. So you have celebrities—and especially we’re living in an era where we have semi-professional celebrities. It’s not just A-List celebrities that we’re talking about. We have people who have become famous on YouTube and people who have become famous because they’re reality stars. And I think the question is do those celebrities have the same economic power to market their image as an A list celebrity does. That’s where you have this real tension, because many of these celebrities want to use social media, and they want to use the Internet, and they want to use paparazzi because they want to be as famous as possible. Then they can market their image for more and more money. At the same time they don’t want to be associated with brands that they haven’t endorsed. At the same time advertising is changing so that content and advertising as being fused together. That is going be where these issues continue to intersect and cause problems over time.

QUINN: I can imagine particularly more so for people like Kim Kardashian and others who are really famous for being famous, right?

DINERMAN: Absolutely. She is famous because she has millions of Twitters followers and millions of Facebook followers. That contributes to her fame and that contributes to the way that she and her family make money. Part of what they’re excellent at is using the Internet and using the social media to control their image and to present a certain image to people. So issues will arise if a company or a brand is trying to pick up a photo and associate the Kardashians with their brand without permission. This tension is going to continue to exist until we understand the real difference between commercial and noncommercial speech. I think this may be an area where the Supreme Court may take a case. There are some issues that have not been addressed, such as does the First Amendment completely protect against noncommercial speech in the rights of publicity area? The Seventh Circuit touched on that issue and then reserved it in the Jordan v. Jewel Food case. But I think that it still remains an open issue. If something is noncommercial speech but you are still violating somebody’s rights of publicity, can there be any recovery of damages?

QUINN: Yes. I could see the Supreme Court wanting to get involved in that because I think we have a very political Supreme Court. Not just a large P political but a small p political, meaning they want to take issues that they think matter regardless of whether it is a huge burning legal question. They want to become ingrained in the debate, in the discussion and really form the law in a way that other more traditionally conservative Courts may have been against doing. To tell you the truth I’ve been surprised that this Supreme Court hasn’t taken more cases that deal with the Internet. So maybe we’ll start to see that.

DINERMAN: I think we will. As we see more of these cases go to trial there may be one that poses a question that they need to weigh in on. If they do it will be something having to do with the difference between commercial and noncommercial speech and whether or not the First Amendment provides complete protection for noncommercial speech in the rights of publicity area.

QUINN: It checks all their boxes.

DINERMAN: I think that’s right.

QUINN: I appreciate you taking the time to chat with me. But maybe I can squeeze in one last question. I certainly don’t expect you to get into anything confidential, but I know like any attorney and for a major company you’ve probably got all kinds of ongoing litigation and the like. So without going into anything confidential, can you give us an idea of what is a day in your life like? I mean are these issues that you’re dealing with on a daily basis, a weekly basis, a monthly basis?

DINERMAN: My team handles business and legal affairs for media, marketing and the Yahoo Studio.  So rights of publicity issues are raised on a daily basis. We regularly do marketing deals with professional athletes to represent our brand and our products. For example, this year we did deals with a number of NFL players, such as JJ Watt and Patrick Willis to represent Yahoo’s Fantasy Football product. In the past we have also had deals with David Beckham, Johnny Damon and Elvis Stojko to name a few. We also have deals with the talent that appears in our original programming, and those deals involve marketing rights. And rights of publicity issues are always considered when Yahoo’s is producing ad spots and commercials. So I’d say that these issues present themselves on a daily basis.

QUINN: Okay. I lied, one more last question. When I go out and talk to various groups and particularly if I go and talk at law schools I always get asked the question, “How do I get involved in this industry? This is what I want to do.” You know, and I can answer that for those interested in a career in patents; I can give them a roadmap. But for someone interested in copyrights, right of publicity, entertainment law and Internet legal issues, what advice would you give to a law student that wanted to go in that direction?

DINERMAN: The most important thing for a young lawyer is training. Going to work somewhere where you can get really good training is what sets you up for a career in which you can have an interesting IP practice. So for someone interested in practicing IP law I would recommend finding a law firm or an in-house practice where you can get really great training and work with experts in IP. I think if you develop an expertise in a particular area, such as rights of publicity, that’s the best way to get into a place where you can practice in that area.   And I may be biased, but I would encourage young lawyers to join the digital space where there are so many cutting edge issues and new law is still being made.

QUINN: Okay, great. I really appreciate you taking the time to chat with me.

DINERMAN: Thank you, Gene, I appreciate you taking the time to talk with me as well.

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