And those of you who didn't change the channel might have started thinking - did they really get the consent of the President of United States to use his image in an advertisement?
And those of you who have an interest in intellectual property might have started thinking - do they even need his consent?
The question of the right of a person in his or her own image takes us to an interesting area of intellectual property rights. It is not the area of copyright, which deals with the right of a photographer or publisher in an image. Rather, it is the right of the person appearing in the photograph to say: No, you may not use my image in certain ways without my consent. This area of law is known as the law of "personality rights", and it includes two somewhat overlapping fields - the right of privacy and the right of publicity.
The right of privacy has been around for a while, and managed to gain recognition as a legal right after Louis Brandeis and Samuel Warren published an article in the Harvard Law Review about it. But the right of privacy was very much the right of private individuals who didn't seek the spotlight to simply be left alone.
The right of publicity on the other hand, is the right of people who do seek the spotlight to prevent unauthorized use of their image. It is of course more about the right to exclusively profit from use of their image than the right to prevent their image being used at all.
In Israel, the right of publicity was first recognized in the Alonial v. McDonald case, in which, after basketballer Ariel McDonald had appeared in a commercial for Burger King, competing burger chain McDonalds released an advertisement quoting an interview previously given by the basketballer, in which he stated that he preferred McDonalds. In light of this counter-advertisement, Ariel McDonald’s contract with Burger King was terminated, and Ariel McDonald sued, inter alia, for violation of his right of publicity.
Following a thorough review of the US jurisprudence, the majority led by Justice Rivlin recognised an Israeli right of publicity based primarily on the Unjust Enrichment Law. With respect to application of the Protection of Privacy Law, the court found that Ariel McDonald had waived his right of privacy by agreeing to appear in the Burger King advertisement, thereby placing himself in the public domain. As to the question of whether McDonalds was “enriched” by the advertisement and whether its enrichment was “unjust”, the court found that the fact that McDonalds was merely responding to the Burger King advertisement with the revelation of true facts did not entitle Ariel McDonald to a remedy for violation of his right of publicity.
Whilst the end result of this case was probably correct, the court reached the right result by the wrong reasoning. Instead of considering whether the use of Ariel McDonalds’ name was “unjust”, a task which is near impossible to determine and normatively void, the reasoning should have focused on the normative foundations of the right of publicity, which I divide into two categories - "liberty" interests, which primarily derive from US jurisprudence, and "dignity" interests, which primarily developed in Europe.
Providing proper incentives to invest in socially beneficial activities: This doctrine recognizes that the right of publicity has some common ground with copyright law, in that one of its purposes is to avoid a situation in which creative people will underinvest in creative work due to the fear that they will have no way of stopping third parties freeriding on the fruits of their hard labour. This concern is very relevant in cases like Zacchini, the US case of the circus performer whose entire human cannonball act was filmed without his permission and then broadcast on TV. It is not particularly relevant in pure "protection of celebrity" cases like McDonald, where we have to question whether there is some social benefit to having celebrities invest in their own celebrity.
Preventing deception of consumers: The right of publicity is also akin to trademark law, in that it seeks to prevent deception of consumers who might be falsely led to believe that trusted celebrity X (think Gimel Yafit) personally endorses a product Y. In terms of consumer deception, since McDonalds did not use Ariel McDonalds’ name in a manner which falsely suggested that he endorsed McDonalds’ products (on the assumption that the quote given by Ariel McDonald in the news interview was not fabricated), there was little likelihood of consumer deception.
Freedom of speech: Freedom of speech is an important countering interest, in that it recognizes that not only does the celebrity have a legitimate interest in commercializing his or her image, but also that the public has a legitimate interest in expressing its opinions about the celebrity. This is particularly important in a world where increasingly celebrities are becoming politicians and politicians are becoming celebrities. An overly broad right of publicity can potentially have a chilling effect on speech and especially satire, as was seen in the US when Governor Schwarzenegger managed to have a doll in his likeness, wearing both a suit and a machine gun bandolier, removed from the shelves.
Human dignity: The drafters of Israel’s Protection of Privacy Law were clearly influenced by concepts of both European concepts of dignity and American concepts of liberty. The law provides protection against invasions of human liberty, such as wire-tapping and photographing a person in such person’s individual domain, as well as human dignity, such as publishing a person's photograph in circumstances in which such publication is likely to humiliate or disgrace such person, or the use of the name, picture or voice of a person for profit. It was also no coincidence that the constitutional revolution was triggered by a law entitled Basic Law: Human Dignity and Liberty.
The McDonald court should not have spent its time agonizing over whether McDonalds was enriched and whether its enrichment was unjust (in subsequent cases like Hachi Tov, it seems that enrichment alone became sufficient to claim damages, regardless of whether it was unjust).
Instead, the court should have recognized that the case involved a clash of conflicting core values - Ariel McDonald's human dignity vs. McDonalds' and the public's freedom of speech.
Ariel McDonald’s dignity was at stake, in the sense that McDonalds was presenting him as a liar when he said in the Burger King advertisement that he preferred Burger King. On the other hand, McDonalds (and consumers, basketball fans and burger fans alike) have a speech interest in being able to know and discuss whether or not the sports icon is lying or not. Given that the McDonalds advertisement in this case simply provided the countering information regarding what Ariel McDonald had previously said in a news interview, the speech interests at stake clearly prevail over Ariel McDonald’s dignity interest, and therefore his right of publicity should not be (and was not in the case) upheld.
If, hypothetically, McDonalds had gone further and blatantly humiliated Ariel McDonald, or raised false allegations (whether about his burger-eating habits, his sexual habits, or anything else) to discredit him, then there would be a serious case to be tried on the evidence.
So this brings us back to the Yes advertisement. Whilst it may not present the Leader of the Free World in the most dignified light, it is far from humiliating. On the other hand, it is clearly satirical and not an attempt to deceive the public into thinking that Obama really does want us all to get satellite TV.
Is it unjust enrichment? Who knows? And who cares? It is speech - even commercial speech is speech, and chilling speech about the most powerful public personality in the world can't be a good thing - and it should be allowed to screen unless it violates a substantial normative interest which tips the balance in the other direction.
No comments:
Post a Comment