The Supreme Court's first (and only) ruling on the rights of publicity

Mark Roesler, Esq. (CMG Worldwide) told the audience Monday at the BVR Divorce Summit Monday that the first case that allowed for individuals to maintain their “right of publicity” was the “Human Cannonball” Zacchini case (Zacchini v. Scripps-Howard Broadcasting Co. 1977).   This involved local news coverage of a man who, while performing at the Geauga County Fair in Burton OH, shot himself out of a cannon; he claimed that the news coverage diminished his ability to capitalize on his skills.  After the Supreme Court decision, state courts started to follow along, first in Virginia, and most comprehensively in states like Indiana and Tennessee–and now California.  The California law is the most litigated, and it extends protection for 70 years.  The law has been amended many times since the first efforts in ‘70’s.

Roesler, arguably the leading expert on rights of publicity in the country, mentions that a recent update is the Comedy III case (Comedy III Productions v. Saderup)–this is a good indicator of the “sufficiently transformative test.”  The court felt that the IP rights of the original artists (in this case the Three Stooges) outweighed the artistic rights to reproduce the image.   In this case, in balance, the court felt the transformation in the reproduction was not sufficient.

Another interesting case is Edgar and Johnny Winter (Edgar Winter et al. v. DC Comics et al.), says Roesler.  The courts ruled there that the transformation to comic books was sufficiently transformative to protect the First Amendment rights of the comic book artists.