Right Of Publicity Is Not Copyright: Free Speech Pitfalls For Comic Book Artists, Publishers & Sellers

Posted on February 4, 2010 by Geoff Gerber

Online comic book store Heavy Ink gave a strong response to Olivia Munn's attorneys: "shove it." Olivia Munn is co-host of G4's Attack of the Show, an actress, and most recently the cover model for January's Maxim. Her attorneys are opposed to Heavy Ink's sale of the Celebrity Showdown Olivia Munn One Shot #1 comic from creator Brian Denham and Antarctic Press. 

In their cease and desist (jpg), Ms. Mann's attorneys demanded that Heavy Ink, the seller, take down a webpage link for the comic book and demanded that they destroy all copies of the comic. Don't know if her attorneys have gone after the publisher. They addressed their demands to Heavy Ink's DMCA Agent, which may have confused the folks at Heavy Ink into thinking that this was a copyright issue. It is not. Ms. Mann asserts her exclusive rights to "use or exploit her image and/or name in any manner whatsoever." This invokes the right of publicity, not copyright.

Unlike copyright, which protects particular expressions of ideas (artistic works), the right of publicity protects a celebrity's right to control the fame that they build in their name and likeness (identity). A right of publicity claim exists for:

  • use a person's identity,
  • without the person's consent,
  • with an intent to obtain a commercial advantage.

While Heavy Ink may have had a good argument that it did not intend to obtain a commercial advantage because it did not know who Ms. Munn was, that argument is slipping away with the increasing number of posts on its site that proclaim what a great marketing opportunity has been created by Heavy Ink's public response.

Regardless, that was not the reason for its strongly worded response. Heavy Ink refused because:

"it is clear that [Ms. Munn] is a public figure. As a public figure, the use of her likeness meets the tests for the parody copyright exception set forth in both Campbell v. Acuff -Rose Music, Inc. and the more recent Suntrust v. Houghton Mifflin."

While these two cases do address parody defenses to copyright infringement claims Campbell - 2 Live Crew's "cover" of Roy Orbison's Pretty Woman, and Suntrust - Alice Randall's The Wind Done Gone perspective shift on Margaret Mitchell's Gone With The Wind), they do not create parody defenses to right of publicity claims.

There is no absolute defense to a right of publicity claim based upon parody. Instead, parody is part of the general defense based upon First Amendment free-speech rights. And,even though the First Amendment is part of the U.S. Constitution, the First Amendment defense to right of publicity claims is analyzed in at least four different ways depending upon where the suit is brought.

  • the "transformative use" test, e.g., Winter v. DC Comics (over the Winter brothers' complaints about the Jonah Hex comic
  • the "relatedness" test, e.g., Parks v. La Face Records (for Outkast's song titled Rosa Parks)
  • the "actual malice" test, e.g., Hoffman v. Capital Cities/ABC (when Hoffman's Tootsie character appeared in a Los Angeles Magazine fashion spread)
  • the "predominant purpose" test, e.g., Doe v. TCI Cablevision (or Tony Twist v. Todd McFarlane disputing a character's name in Spawn)

It should also be noted that it is not clear that Celebrity Showdown would be considered a parody. As the Heavy Ink website describes the comic:

Olivia Munn conquers the world in this hilarious spoof! Hollywood's hottest geek girl, Olivia Munn, hosts G4's Attack of the Show, but while at comic con, she is attacked by a swarm of fans. Unable to escape, her gamma-irradiated cells explode and unleash the fury of The 50-Foot Womunn. It's the showdown of the century! Geeks vs Munn! Let's get ready to rumble!!

We'll have to wait for the comic's April release to see if it offers any commentary about Ms. Munn, or simply places her in a fantasy setting. In Dr. Seuss Enterprises v. Penguin Books USA, the Ninth Circuit held that The Cat NOT in the Hat was not a parody and infringed Seuss copyrights and trademarks because the Seuss-like stanzas about the O.J. Simpson case ("One knife?/Two knife?/Red knife/Dead wife") "have no critical bearing on the substance or style of The Cat in the Hat. [the author and publisher] merely use the Cat’s stove-pipe hat, the narrator (Dr. Juice), and the title (The Cat NOT in the Hat!) to get attention or maybe even to avoid the drudgery in working up something fresh." 

Still, in most states the First Amendment would protect a comic-book creator in the right of publicity context based upon the First Amendment if the work itself is sufficiently transformative.

Not so in Missouri. A crafty, plaintiff's attorney would purchase the comic on-line and have it shipped to a St. Louis address to obtain jurisdiction and take advantage of the "predominant purpose" test that lets a jury weigh the commercial value of a celebrity's name against the artistic value. At the same time, a wise purveyor of comics would block its website's sales into Missouri.

Perhaps more interesting is why Ms. Munn's attorneys would be going after this particular comic when a plaintiff's attorney would find a treasure trove of other opportunities in publications from Sinful Comics (absolutely NSFW, may find offensive). In particular, you would think that instead of going after the more mainstream publication by Antarctic Press, Ms. Munn would be more concerned about her depiction and sale in this adult oriented comic (partial image below, full image definitely NSFW). That is unless Ms. Munn has a licensing agreement with Sinful Comics.

Regardless, this will be a very interesting situation to watch develop.
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