 We are delighted today to have Jennifer Rothman with us from Loyola Law School in Los Angeles to talk about her new book, The Right of Publicity. I'm Jessica Fielde. I'm the acting assistant director of the Cyber Law Clinic here and this topic is especially interesting to us because it's one that comes up a lot as we advise clients thinking about this essential question of the book who controls how one's identity is used by others and we're excited to hear Professor Rothman's perspective on how this is becoming relevant for so many private individuals in addition to the celebrities that the law was often, these state laws were often originally contemplated in relation to. So please join me in welcoming Jennifer Rothman and we'll have our own Professor Tushnet in conversation with her at the end. Thank you. Well thank you to the Berkman Klein Center for inviting me to talk about my book and for Rebecca Tushnet who read a very early draft and gave some comments and then it's going to participate in some of the conversation afterwards and Carrie Anderson who I think couldn't be here today but helped organize my trip in many different ways. The book is titled The Right of Publicity, Privacy Reimagined for a Public World and I thought it wasn't we weren't going to have copies for a few weeks but because it's Harvard University Press they were able to get some copies for us here so if you want to hear more about it or read more about it you can pick up a copy at the end. The book challenges the conventional yet erroneous story of the right of publicity's development and by doing so provides a number of insights for resolving some of the problems posed by today's right of publicity including its conflict with individual liberty free speech and the rights afforded by copyright law. Some people in the room may be more familiar with the right of publicity than others but at its essence the right of publicity is something we all have it's the right to stop others from using our identities particularly our names and likenesses without permission and usually for a defendant's advantage. It's sometimes as thought of as a property right in one's personality. I contend in the book that the right of publicity lost its way when it shifted from something rooted in the individual whether understood as a property right or not to an intellectual property or quasi IP right that could be taken away and transferred to others. This shift has not only jeopardized our control over own identities a central concern in the book but the shift to the intellectual property frame has also dangerously expanded the right in ways that limited interfere with creative expression and even with news reporting. Today little remains unspoken secret or truly private and the differences between public and private figures and public and private spaces has deteriorated beyond recognition. It's therefore often said that privacy is dead but privacy lives on in the right of publicity and provides an opportunity to protect privacy in our now very public world. The right of publicity couldn't able us to stop Facebook from using our names and likenesses to sell Coca-Cola from stop Twitter from selling playing cards with our names and likenesses on them. Mugshot sites from extorting money from those who've been arrested and who want to get their pictures taken down from those sites as well as provide an avenue for victims of revenge porn and deep fakes to get their images taken off the internet as well as to recover damages. And in case you thought any of those were imagined those each of those examples is happening today all of those uses of both private and public figures names and faces have been made including the Twitter trading cards if you haven't seen them and the right of publicity could provide relief where the today's version of the right of privacy has failed to do so. But in order to allow the right of publicity to do that work without shutting down speech about public figures and public matters and creative expression and without endangering our ability to control our own identities we need to reclaim some of the core insights of privacy law and its harmony rather than its differences with the right of publicity. The wrong turns by the right of publicity have been driven and continued by a host of mythologies that have sprung up surrounding both it and its alleged split with its predecessor the right of privacy. And in the book I challenge these common though erroneous stories about the two rights and by doing so provide a path for setting the right of publicity back on course again. The first part of the book busts some of these nearly universal myths about the right of publicity and its origins and he did a lot of archival research for the book to tell the true story of how the right of publicity emerged. It's commonly said that the right of publicity is the reverse side of the coin of privacy law in other words it's opposite. We commonly hear that privacy protects seclusion secrecy and hurt feelings while publicity primarily protects sometimes people think exclusively protect celebrities and their economic interests but these claims are not true. The primary and main difference with privacy laws is that the right of publicity would eventually become to be understood as transferable something that could be taken away from the underlying individual and this transferability rather than being something that helped individuals worked the advantage of corporations and other third parties and even empowers these entities today to take ownership of our own identities against our wishes. To understand why the shift to today's version of the right of publicity did not happen for the reasons that are so often claimed often it said that the right of publicity is about protecting individuals one needs to take a little walk down memory lane and we'll do a brief one here together and then there's more in the book about this but I had to go back to primary sources because very early on these myths about privacy law got repeated and repeated by student authors professors by courts and others often for strategic reasons and have not largely been questioned so it's almost universally claimed that the right of publicity was created and coined in a second circuit court of appeals decision in 1953 called Halon labs retops chewing gum but as the book demonstrates this turns out to be not true it didn't coin the term at all and it didn't create the concept either the original right of publicity was actually the right of privacy and at its origin the right to privacy was primarily about the right to control quote publicity about individuals when and how one's image and name in particular could be used by others in public the term right of publicity was even used at the time starting in the mid to late 1800s and the right of privacy was frequently defined as the right to stop unwarranted publicity about oneself the very first cases to consider whether there was a right of privacy in the united states were ones that today we would consider to be prototypical right of publicity cases involving the use of a person's name or likeness in an advertisement up on the screen here are some cases for those who know a little bit about the history of the right of publicity that you may be familiar with on the left is an image from the roberson v rochester folding box company case from new york and this is a photograph of abigail roberson that was put on advertisements for flour on the right is an advertisement for new england life insurance and the man on the left is palo pavisage who sued when his photograph was used without his permission in the life insurance ad and that is a case that went to the georgia supreme court so at the time where the right of publicity developed it was not cases about the publication of private facts or intrusion into seclusion that predominated the adoption of right the right of privacy but it was in fact these uses of people's names and likenesses often in commercial contexts while today the right of privacy means many things jumbled up together for us from privacy torts to information and data privacy to constitutional privacy focused on decisional autonomy at its origin in the mid to late 1800s privacy was expressly located in tort law and was focused primarily on providing a way to control the use of one's names and likeness the very same interest to protected by today's right of publicity laws and these concerns reached a fever pitch in the mid to late 1800s because of a number of technological changes just as we find ourselves waste with technological changes in our internet age today some of these changes most of these changes were brought about by the industrial revolution including the development of national and international markets which gave rise to mass media and celebrities across the country and across the world which made individuals commercial identities more valuable it also led to a proliferation of newspapers and advertising and competition for news selling of those newspapers which led to the rise of yellow journalism and some salacious reporting which caused some outrage as well as significantly the use of portable cameras that could be operated by amateurs outside of the studio this is an ad from that era of the 1800s of the Kodak camera which was one of the first portable cameras the advertisements touted the features of these what were called detective cameras because they could take pictures of people without them being known that we were being taken this deceptive angle camera was sold at the time and people became very concerned about these unwanted photographs being taken and then disseminated whether in advertisements or in newspapers so the right of privacy was primarily developed to address these concerns afterwards some myths would arise and you may have heard many of these that the right of privacy didn't protect public figures that it didn't provide economic recoveries that it didn't recognize damages to professional careers or property rights but none of that was actually true privacy did publicities work from the very beginning so starting in the 1800s in the early 1900s public figures had claims whether there were performers on the stage actors singers uh maryon manola is on the left third in is charles elliott former president of harvard who was able to bring a successful privacy claim and on the right going forward we have fred astaire so early on under privacy laws they were able to bring claims these were not just emotional and dignitary claims they were able to bring both dignitary and property based injuries there were endorsements and public celebrities starting at least in the 1800s probably going back many centuries before that who filed privacy lawsuits claiming professional damages lost endorsement fees and the like and they were able to recover economic damages as well both for their professional careers and personal damages so what was actually missing so what was missing from the right of privacy and what was missing was this transferability of the right uniformly court said you couldn't transfer the right of your own name and likeness to someone else well this was something that actually was beneficial to individuals but corporations and companies found this less wonderful because they wanted to be able to control valuable individuals identities and so hollywood and broadway started to see an opportunity as well as merchandisers hey if we could own these people's identities think of how much more control we could have which brings us to the case that's often credited with creating and coining the right of publicity but which did not do so hayland labs now i went back into the archives and looked at pieces of rotting gum as well as court filings in the case and there's a whole chapter in the book about this case so i but i'm not going to spend a lot of time talking about it today except that i think it's very evocative the facts of the case and highlighting why this transferability matter to companies but not so much to individuals so if you go into the the book chapter you'll see that this case actually wasn't about publicity or privacy rates at all is very much a contract case but here what that was an issue were competing baseball cards sold with chewing gum and of course the the baseball cards were really to sell the chewing gum the baseball players gave permission for the uses of their names and likenesses to two competing companies and the companies understood that under privacy laws at the time they needed to get permission from the baseball players to do so and pay them for doing so and they did but one company the one who thought it got the deal first wanted to stop the other company from using the player's name and likeness even though the players had agreed to both uses and through a lot of twist and turns that i don't have time to go into now the company wound up by the end of the day raising the issue in the second circuit of whether there had been a transfer of the right of publicity to the company halon labs really its predecessor by the baseball player and once they owned the player then they could stop the player from giving permission to a second party and this aspect of the case is what the hollywood lawyers love they're like wow the studio systems fallen apart but if we could own the rights to the name and likeness over our stable of actors we could stop them from double booking movies double book booking advertisements we could decide what they could do and what they couldn't do so we'll just pause there in that the sort of the history of right of publicity so as i said this case didn't actually create the right of publicity decided under new york law which expressly rejected an independent right of publicity so fast forward about 25 years to 1977 and that is where today's right of publicity truly emerged with a case that went to the supreme court zikini v scripts howard this is a point in which the right of publicity and the right of privacy truly split and the right of publicity became understood as an intellectual property right this ip turn which largely began in the 1977 supreme court case zikini v scripts howard broadcasting so in this case a very unusual set of circumstances and again i went into the archives here i read all the justices papers bizarre story of how this unlikely case actually got heard every single clerk uh at the time on the supreme court recommended against granting cert in the case every single one so um yet it was heard uh and in a five four decision which is the part i'm going to focus on in today's uh talk at five four decision the five of the justices worried that uh that in this case which involved a human cannonball performance and the news showed the broadcast of the performance it was only 15 seconds but it was it was perceived to be the entire human cannonball performance five of the justices worried that if the news could benefit from a first amendment defense in this instance then the news could show any performance including a symphony that one of the justices just happened to see the night before oral arguments in the case uh and was concerned that you the news could just record the entire symphony or an entire play or a boxing match and broadcast it and say it's news uh and so that really was what was informing the case and this sort of quasi copyright case in which copyright didn't apply to the human cannonball performance but it really was very much like a copyright issue in terms of the performance led the justices to treat the right of publicity as an intellectual property like right this was particularly strange since the case was brought under ohio's privacy law yet the spring court spent much time saying this is not about privacy this is about something different this is about the right of publicity this is a right that is just like copyrights or patents unjustified with all the same reasons whether it's the incentive rationale encouraging performances or the labor reward of rewarding our human cannonballs efforts in creating their performance as i talk about in the book those justifications don't actually map on very well to the right of publicity and certainly not outside these performance cases so uh and and and as i said i go into more detail in the book about that but what i want to highlight here is because of the bizarre facts of this case and the way the supreme court described the right of publicity it became understood as being like copyrights and patents which are transferable in our forms of intellectual property and at the same time as this case was decided elvis presley died the same summer which is a big deal i'm not a huge elvis fan but uh but it was a big deal uh and he's now one of the most valuable dead people uh in the world um and his uh for those who don't know that much about elvis his manager during his lifetime took 80 percent of elvis's earnings carnal parker 80 percent of his earnings and when elvis died carnal parker didn't want to lose his gravy train and a transferable right of publicity would be very valuable to him because it could survive death unlike the right of privacy which would die with the individual it could be transferred to his heirs so carnal parker started litigating all over the country along with some other heirs to celebrities um to try to get these rights to survive death and and continue earning income and zucchini gave them lots of ideas and sort of a a hook to hang their coat on in that regard so that sort of sets up where we are today and that is the true origin of the right of publicity and sort of them sort of misstep in the zucchini in which it was intellectual property flight which gave opportunities to heirs and celebrities and this has set up three major problems with today's right of publicity that have created a host of challenges and are obstructing i think some of the beneficial insights that the right of publicity could be offering to us today so in my remaining few minutes of my initial comments and then we'll open it up for a conversation with professor touch net and and for your questions i want to highlight three dangers that today's right of publicity poses each of them has its own chapter in the book so today i'm just going to highlight the challenges rather than providing the solutions although i talk about some of those solutions more in the book so the first as i've highlighted here today is the danger of transferability that we've created this bizarre world in which our names and likenesses could be owned by someone other than ourselves and perhaps unwittingly next time facebook changes it terms of service perhaps owned by facebook and then they can sell our data and our name and likeness to wherever they want whether it's cambridge analytica or someone else so if the right of publicity is truly treated as a freely transferable right like patents and copyrights that's exactly what should happen and most states who've adopted right of publicity laws recently have highlighted this free transferability as a feature rather than a significant downside to the right one lawsuit arose in california involving oj simpson and the estate of ron goldman some of you may recall that after oj simpson was a famous football player who is a famous alleged murderer and although he was acquitted of those criminal charges in the the death of his ex-wife nicole simpson and her friend ron goldman he was held liable in a wrongful death civil suit and there's a multimillion dollar judgment that issued against him he then left the state of california for florida where you can shelter all of your income in a single family home which is exactly what he did and he vowed not to give the goldman's assent the goldman's now were creditors of oj simpson and filed suit to have his intellectual property transferred to the goldman family and in fact that's what happened with regard to the copyright in oj's book if i did it and you'll notice that they released it the goldman family to highlight the eye and the if has become very small and they also added an introduction he did it because they own the copyright they could do that and they also sought to have his right of publicity transferred to them in which they could then stop him from doing public appearances and perhaps also force his name and image to appear in a variety of ways a california trial court denied the transfer of the right of publicity saying this would be a kin to involuntary servitude but most court and lawmakers have said that it is in fact freely transferable well what does it mean if it's freely transferable not only could creditors like the goldman's get uh get the rights to a person's name and likeness or if you declare bankruptcy your creditors could your ex spouses could but even so-called voluntary transfers may also be troubling reality television shows have contestants sign away their rights of publicity to them uh facebook hasn't thus far reached so far but has had you sign over the rights to individual uses of your name and likeness and can use you to advertise uh and just read those terms of service uh they change all the time you've given them permission to do that the ncda has claimed that student athletes have assigned to it uh the rights of the names and likenesses of student athletes in perpetuity in any context not just in the ncda context and parents can also assign away in perpetuity the rights to the names and likenesses of their children that the children cannot get back uh when they reach the age of 18 uh and even after death could be owned by someone else uh so uh it's not entirely clear what someone who owns the rights to your names and likeness could do or stop you from doing i give an example of the book of ariana grande suppose when she's starting out she signed with a manager who's going to help her get her first break the manager as a condition of representation asked her to assign her right of publicity to him uh could he then and ariana grande is a very devout vegan uh could he stop her from doing uh endorsements or be a spokesperson for pita an animal rights group or uh supporting or doing advertising for tofu could he force her to advertise uh lunch meat which she would find anathema now there's some other laws in this space uh and that uh presentation certainly teaches about asvi and trademark law and advertising law that would provide some limits but it's not clear how many of they're the actual owners of her right of publicity so that's one major concern that people rarely talk about is this transferability concern the second one that i will i will flag before before we move on to our conversation is the increase in conflict between the first amendment and the right of publicity when the right of publicity became understood as this ip right not only did it expand in scope because of the misconception which is true in other areas of ip that more is usually better um but it also then fit into a category of speech that i dub being the beneficiary of an ip exception to the first amendment which seems to get less scrutiny uh when put up against free speech interest and we've seen this in a variety of contexts uh just last week this case uh was uh overturned on appeal but a trial court had previously held that effects could not have a character based on the two time academy award winner olivia de havin in its mini series feud about the feud between betty davis and jone crawford uh your own professor tushnet and i filed an amicus brief in the case and actually got to argue with the case before the california court of appeals a couple weeks ago some of the arguments from the the book and our brief i think were persuasive to the court because the trial court had said there's no first amendment protection here against her right of publicity claim and the california court of appeals got some sense and said no that that can't be right we have to be able to tell real stories uh about real people at least in the movies but there have been a number of video game cases that have gone the other direction suggesting that we can't depict real athletes on real rosters that this is not a violation of the first amendment which should be very troubling in a variety of ways because false endorsement law and defamation law are very robust speech protections that the right of publicity seems to lack entirely the last major problem i see with the right of publicity the way the right of publicity is currently treated and the ip turn is its collision with copyright law federal copyright law because the right of publicity has been put on the ip pedestal it's being seen as equivalent or on par with copyright law rather than the federal law being superior which causes a number of clashes here's one between sort of the actors and producers of the famous sitcom cheers and the actors uh the actors who are on the right uh john rassenberger and george went object objected to the use of these robots in cheers themed bars uh at airports that had been licensed by the copyright holders and prevailed uh in their right of publicity claim and the copyright uh rights to license were rejected a more recent case that we might want to talk more about in the q and a involves uh the nc double a licensing and selling of photographs in maloney in t3b maloney and in that case the ninth circuit said federal copyright law prevails here they can sell these photographs um and so that sounds like a good decision except then they said but not on a mug not on a mug you can sell the photograph but not on a mug um and that makes no sense because copyright tells us that the selling and reproduction of this photograph is the same as selling the photograph on a mug the first amendment says this isn't commercial speech this can be art on a mug on a t-shirt doesn't matter where it is and so they shouldn't really be treated differently and so these are some of the things that i tease out more in the book so in the years ahead if we can solve these three major problems and and understand and better contextualize the right of publicity the right of publicity should be a tool to protect not only public figures but private ones as well i think that's as it should be but first we need to tame the bloated monster that the right of publicity has become something that the book provides guidance for how to do properly understood in cabin the right of publicity can provide a path to addressing a number of 21st century challenges and for saving privacy itself in our internet age i'll give you this microphone but just just so people know this is being recorded in webcast since we're talking about privacy so um can you sketch the affirmative case or having a right other than rights against defamation and false light and a right against false endorsement that is you know why doesn't that cover the the the ground that is worthy of being covered that is a great question and so and i think it's useful you know given the the variety of i think attendees here to to say that there's a spectrum of views about the right of publicity and so while i am very critical of some aspects of the right of publicity i think it has some important value and and i think press attention and a few others might to on the other side say maybe let's just get rid of the whole thing and but then there's the vast majority of people who are over here from both of us who think it should be more expansive and more powerful so i'll just i'll just to contextualize what this this question but to situate the question so i thought very much about that question as i was working on this book and i do think that beyond just defamation right someone could use an image of someone in ways um that we might think of whether it's revenge porn or um you know facebook using you in some way to say oh you like coca-cola because you pressed like on the thing that's not defamatory um now in some instances it might raise the level of false endorsement but you might be able to say not specifically endorsed we just want you to know that your friend also likes coca-cola because she pressed the like button and there are instances like that where i think just being able to control the use of your name and like less beyond uh defamation and false endorsement makes sense and i think it should be much narrower the right of publicity has become so expansive that even when you're not using the person's name or likeness but merely evoking them there can be liability and that's a place where i think that that should not be allowed unless it rises to the level of being defamatory false a false endorsement but i think there's another space where the right of publicity could be doing more work and i think primarily in the instance of private figures more so than public figures who are more likely to benefit from false endorsement claims uh which some people think private figures wouldn't even be able to benefit from because they don't have a commercial uh an economically commercially valuable identity right so let me press on that so which is uh the one thing that you seem to have mentioned so far is the facebook like thing uh so does does that mean that you should have an unwaivable right to frame it one way um you know the tech companies are will take this as saying you have no right to have a business model that relies on saying i will give you this service for free um if you give me your data um why why don't they have the right to have that business model so i think that the some of this has to do with the defaults and also the scope of what can be transferred with the right of publicity so i don't think that we should obstruct that business model necessarily but i think that most people who use facebook have no idea about that and hidden terms of service that people are agreeing to and that some of this has to do with contract law and and what should be permissible in terms of what you've agreed to but i think most people don't realize that and so i think the defaults should be shifted and this is in part a larger question about information privacy and what our privacy default should be so but i think it should be much more transparent and i don't think that any contract should allow a global transfer of one's right of publicity and perpetuity so i'm less concerned about small waivers in the context of being able to use a person's name in the context of a product for a limited period of time say one year in a particular context of toothpaste um but the global transfer forever person's name and like this is far more concerning to me in that context but i guess my question is why sorry one one last pressing on this and uh because uh for all the stuff that creeps us out uh a five year transfer is more than enough to get us Cambridge Analytica right and and uh so and there's also plenty of good evidence that uh companies with an incentive at doing so are really good at get flipping the defaults right this is uh lauren willis has some excellent work on this so uh if if it's a right if it is a problem that i'm i'm struggling to identify the the source of the the interest that that can adequately be identified by calling it a right of publicity or even a privacy right right so i this is something that i talk about in more depth in the book is to go through some of the justifications for the right of publicity and right of privacy and i think the best justifications for the right of publicity are the same ones that justify the right of privacy which are not about the economic value of the underlying individual which i think are better addressed through other mechanisms including false endorsement and trademark law but are about the dignitary rights and harms that can flow from losing control over your name and likeness and other addition of identity and letting people use it in terms of some of the contemporary problems i think that the right of publicity is one tool of many that could address it is it the most efficient way that probably with some of the facebook and data breach problems the best thing is to have government regulation in that space but i think having an understanding that we have as a default the self ownership over identity is an important starting point on which to base many of these other actions you mentioned that in one of these cases i think it was the Santa Monica court rejected a claim on the basis of involuntary servitude uh is that something that i'm sort of trying to understand how that happened and whether that's more likely applicable than in that most of their case well it's often a lot of the cases actually going back to the 1800s talk about the loss of control over your own name and likeness as akin to slavery or involuntary servitude so it's definitely a consistent theme but as the right of publicity laws are increasingly being passed by statute they're repeatedly saying that they're freely transferable and often this is being furthered by two entities today the screen actors guild which seems sort of quizzical because it seems against the interests of most of their members but may have some tax advantages for some of their their biggest earners and the other is by a company called cmg which owns dead people um and uh very much want the default to be free transferability for their their economic benefit sorry you said there was a case in particular like let's say i was 17 years old and my parents transferred in perpetuity my my right away that strikes me that it does fall into involuntary servitude because well i didn't actually consent to that and it doesn't seem to be revocable that's uh yeah that's that's right so i i mean my hope is that courts would be able to strike down many of these transfers on on liberty grounds or right of liberty grounds but but the rights say they're freely transferable and so um i think there's a real danger that that could happen and we've seen it in the context i give an example in the book about martin luther king jr and and this notion that he that his i have a dream speech used to be this paradigmatic example of something that everybody would be able to repeat and retell in fact in some in one amicus brief in the zucchini case that that was something that the news should be able to broadcast and transcribe and then now today his estate is able to stop the selling of martin luther king jr busts and the a sharing of the i have a dream speech so i think uh what seems like something that would never happen slowly and incrementally we can see these see changes and and that's why i think the transferability piece is so dangerous we have another question i'd like to ask how likely you think i'd like to ask how likely you think it is that what you're suggesting will happen given that we have seen an enormous increase in patent law copyright database ownership all forms of intellectual property seem to be moving overwhelmingly toward more corporate control how do you see this actually happening that we could restrict this and get privacy back perhaps i'm actually somewhat optimistic uh in in part because of this this project i think there's not been a lot of voices on the other side of the expansion of the right of publicity and i don't think there's been a lot of sophisticated understanding about the history or development of the right and i actually think it matters and so when when people like me and fresher touch net and nutrient folic get involved uh we start to see some better outcomes as we saw last week in the the de Havilland reversal um and a recognizing of the speech interests we've increasingly in new york which is trying to pass new right of publicity legislation which it's never had it's only had this right of privacy which is very much uh it's right of publicity but they're now trying to pass a new right of publicity law that would uh eradicate its several hundred years of privacy law and and replace it with a freely transferable right and previously no one other than sag and the motion picture association were in the room talking about the law and through getting involved we've now been able to meet with some of the legislatures i don't know that we'll be able to stop the train of new york passing this law um but we may be able to make it a little better and and certainly shed light on it and are making sure that they're hearing from other people members of the public video game makers uh journalists so they're at least hearing more than just in a back room the screen actors guild and the motion picture association drafting a law that they those two parties are happy with get together and get to the table and not have to sign away their rights and perpetuity to their images and in a way in a case one of those pieces that's relevant well do you see collective action and collective bargaining as part of the solution to you from the issue yes that's one thing and and people being more aware of this and and hopefully everyone who leaves here will look at all those contracts that you sign in which you're assigning rights to your name and likeness and your children's name and likeness and collective bargaining can be a place where your entity whether it's the screen actors guild or student uh athlete association or players association negotiates it and professional ball players um do have their players association negotiate their image rights in a way that student athletes don't um so i think that's very concerning i think some of the unfortunate decisions about the first amendment um arose out of the student athlete cases in part because the student athletes were so poorly treated that the court wanted to be helpful but in doing so made i think a very wrong headed decision in terms of free speech grounds in terms of preventing the description and depiction of historical games and rosters so i'm not sure that that this is the best space for solving that problem of the inequities in in you know college athletics which which truly are quite inequitable to the players in other states such as the war it's not the i'm just uh wondering about your view as to the degree to which public policy should enable that this inability to provide publicity in any condition that should be attached so i thought a lot about postmortem rights as well and that's something that that i talk about in more depth than in the book i mentioned it here a little but i didn't talk necessarily about my views i i think that the postmortem i i'm not convinced that we should be giving a windfall to unrelated corporations to make money off of dead people um that's not something that i support and i think there's some some very problematic examples and i think we'll probably see more of them uh if it continues to be descendable of people approaching older celebrities who don't necessarily have personal heirs to try to to sort of rest control of their their after death rights on the other hand i am somewhat sympathetic to relatives and close family members not wanting to see crass merchandising of their deceased loved one in the aftermath and so i think some more limited time period limited to natural persons uh and uh where there's been an affirmative plan by the deceased to to perhaps bar commercialization robin williams did this in terms of barring commercialization of his own identity for 25 years after death and um part of that was also to avoid estate taxes one of the problems now is that the law is set up to make the cmgs of the world wealthy off the dead but the actual close family heirs may have to commercialize their deceased one just to pay off the tax bill because the irs will value the estate at its highest and best purpose which it deems to be commercialized so the michael jackson estate for example is involved in litigation with the irs and their hundreds of millions of dollars apart and how much his right of publicity is worth which greatly alters the tax bill now they plan to commercialize him but you can imagine if you didn't want to if your goal was not to commercialize your loved one that would be a real problem so i think that all the the sort of way in which the post-mortem right is currently constructed is the exact opposite of how we would want such a right designed registration of the secretary of state or something not limited to celebrities and while it does have a registration provision it's not required to be done before death so you can transfer it while you're alive but you don't have to but yeah there i i don't think california has a model post-mortem law to be clear i i i would design it quite differently over here i'm very much interested in you haven't mentioned the public domain and what happens when the right of publicity conflicts with that and which one should win out at that point so that's that's also something i i talk about and particularly with regard to copyright and the chapter on copyright which is that currently because of how robust the right of publicity is and how it's being evaluated sort of on par with copyright that it could potentially undo the public domain that copyright law provides and and that is very concerning so i i think that the right publicity cannot be an end run around that and that copyright law itself should serve to preempt right of publicity claims in context where copyright law expressly places something in the public domain whether the copyright has expired or if someone is for example buys a poster with a movie star in it and then wants to put it up that that's something that i think that copyright law expressly allows similar with sound delights um so i i that's definitely something that i advocate so the uh when the establishment of this right of publicity for the um implies the current restriction of for example using uh those things in the innovative advertisement for conversion that's usually compared to both enforcement for like other mechanism or at least if that is it so i'm not trying to quite understand your question when so um because uh right of publicity could potentially for these like people using certain techniques like this of it was like even if not uh very famous people so in this sense that do you think it will forbid certain transformative work for other commercials to use people's names or images to give innovations like a very funny kind of a joke on the you know youtube or yeah so one of the concerns that i had is this shutting down a free speech including sort of imaginative commentary um about uh particularly about public figures um and and so when we think about the right of publicity i'm not saying we should i'm quite the opposite i'm saying we should have a better balance between free speech and the right of publicity i'm just saying i don't think we should get rid of the right of publicity i think it has some value and can be sort of resurrected um and reimagined in a way that's more harmonious to our regional instincts with privacy laws um but but i wouldn't want it to shut down sort of transformative or parodic uses um now the transformative the term transformativeness is imported from copyright law and some courts have used it in right of publicity cases it's pretty muddy in terms of what it means and in part the olivia to haveland decision and the i think the misstep by the trial court there was driven by some misunderstanding transformation as needing to transform the underlying person's actual image rather than putting it in a transformative new context such as a biographical picture so that term itself can be somewhat problematic so i don't necessarily uh support adopting the transformativeness test in the right of publicity i think there are better ways to analyze it than that uh one of my excellent students and uh i think this question may in part have been motivated by something we discussed um and uh unfortunately i can't put it up on the screen but uh there's a series of interesting ads um uh for a startup called Upwork can you hold the microphone oh sorry a series of ads for a startup called Upwork um and they include hey amazon need any help with literally anything in the world and so it's like a freelancer startup and you know hey blockbuster oh never mind uh and hey georgia our martin need to go straighter to finish that saga call us um so these are things all of which are you know not confusing there's no question of a false endorsement and uh i i wondered to what extent you think there's an interest in stopping that um because it is commercial and it's also clear that amazon for example would lose a trademark infringement case it's a nominative fair use so is there a personal interest that changes such that you know does george r martin have an interest in not being commercialized um in this particular way that's distinct from amazon's interest which we don't honor so i haven't seen uh the ads uh so maybe i i will i will look at them afterwards so i it's difficult for me to comment uh without having seen them um but i do think that that i'm troubled if amazon can take individuals names and likenesses without their permission and then retool them as advertisements so i think there is an interest in in stopping that and as i contend in the book i'm much more concerned about private figures being used without permission because private figures do not necessarily need to be used um to tell the story so it's very different if you're telling a story about the feud between betty davis and jone crawford and olivia to have them is one of betty davis's best friends and involved there you want to talk about olivia to havin you can't talk about jane smith you have to talk about olivia to havin but if you're talking about an individual uh just who's who's could be anyone and you're using their story as was true in the hurt locker litigation that some of you may be familiar with in which um that was an academy award-winning film and and the main character was based on a real person and he sued but the film had changed the person's name didn't use his actual image and so in that instance they didn't have to use the name of the real person in that instance jeffrey sarver to tell their story because it didn't really matter whether it was jeffrey sarver or you know john watt it didn't matter for their story and so they didn't have to use the person's actual name and actual likeness to tell the story just as well and i i think that's an important distinction wait so just to be clear so you think that if they had used his name there would have been a valid claim in the hurt locker case um i think that there probably still would have been a first amendment defense in that instance to the real story i'm just saying that i think that the claim was that and and some of this goes to how the ninth circuit evaluated the hurt locker litigation in which they said that a public figure would have had a claim there but he didn't because he was a private figure which seems in my mind exactly backwards so that's that's where where my point is i think that there's a stronger first amendment argument to using olivia to haveland because she's not replaceable than there is uh for using jeffrey sarver when you could have renamed him will james which is is what they did that doesn't mean if they'd use jeffrey sarver and accurately depicted him in a non-defamatory way uh that that it shouldn't have been uh protected by the first amendment so the qualifications you added actually just go to the heart of where we disagree i think right so suddenly it's accurately depicted instead of um you know non-defamatorily depicted which i think is actually a pretty big difference well i meant i mean litigation on a regular basis i mean non-defamatory and i said accurately depicted in a non-defamatory way so there's at least to be breathing room for not getting it exactly right uh which i think defamation law and false light law and the first amendment protections associated with that do so i wasn't i wasn't trying to suggest so so let me let me talk about the other thing uh so um i asked about an ad invoking georgia or martin's notable lateness um which you know tv anchors and you know everybody else in the public sphere is allowed to do um it's sort of odd that advertisers currently aren't but it is interesting to me that you immediately jump to a movie right so part of our disagreement here is you don't believe in a commercial non-commercial speech distinction uh and i do and i to me uh that deeply complicates this issue because whatever rights you hand out for commercial advertisers and facebook end up extending in your model to movie producers can you speak a little to that that's so that is a dispute that we have in many spheres uh not just in in the context of the right of publicity and some of that is uh uh has to do with just pragmatism in terms of i think the current supreme court has largely eliminated the divisions between commercial speech and non-commercial speech for first amendment purposes so i'm not sure that it has that much uh continued uh valiance but i also think it's problematic to be used outside of advertising your name and likeness as well without your permission now i think that the balance shifts so uh why you need to use the person in advertising may be much less compelling than why you would need to use the person to tell a story about the golden age of hollywood so it's not that i think that they're equivalent it's that i think that there's also an interest even in the non-commercial context and so if we talk about revenge porn that's in the non-commercial context but i still think it's very problematic and so i do not think that these laws necessarily should be limited only to commercial speech uh but uh i wouldn't shed tears either if they were limited uh to advertising and commercial speech as a way to limit some of the the damage to free speech and and certainly in the post-mortem context i think it's very important to have much more robust express exemptions in the laws for movies and books and the like