November 13, 2007 by Peter Luciano

Celebrity “news” programs seem to fill the channels on our televisions at
all times of the day.  Magazine racks are weighted down with the latest
celebrity gossip.  Companies regularly hire celebrity spokespersons to
“hawk their wares” in infomercials and advertisements.  Is it any wonder that
these celebrities are determined to control the use of their images? In
many cases, these individuals make a substantial amount of money (sometimes
exceeding their income from “real” jobs) endorsing products, venues or
services - in essence, trading on their celebrity status.

The laws that protect individuals from the unauthorized use of their images
or likenesses differ from state to state in the U.S., and include copyright
law, trademark law and the right of publicity or personality rights (a
subset of privacy rights).  By the broadest definition, the right of
publicity is the right of every individual to control any commercial use of
his or her name, image, likeness, or some other identifying aspect of
identity, limited (under U.S. law) by the First Amendment.

On September 6, 2007, Paris Hilton filed a lawsuit against Hallmark cards
for the unlawful use of her image on a greeting card for the purpose of
promoting, marketing and merchandising and exploiting its products.  The
card shows a cartoon drawing of a waitress with a photo of Paris’ head
superimposed , and a conversation culminating in the use of her catchphrase
“That’s Hot” (which may be protected under a trademark registration, though
this isn’t addressed specifically in the lawsuit).  She is seeking at least
$100,000 in damages, to be determined at trial and the profits from the
sales of the greeting card.  A representative for Hallmark has stated this
series of greeting cards “takes a satirical look at news and gossip
surrounding public figures, including Paris Hilton, and we do not believe
Hallmark has violated any of Ms. Hilton’s rights.”  This relies on the
fair-use doctrine that creates an exception to the exclusive use rights of
a copyright or trademark.

It would appear that the key question to be resolved in this instance is
not, in fact, whether Ms. Hilton would have consented to the use had she
been compensated but rather whether the use of the image and catch-phrase
is satirical in nature.  Although there is some irony in misusing the
catchphrase, this will likely be overshadowed by the fact that Hallmark is
not generally in the business of political commentary or satire, and the
fact that this was done for commercial purposes - possibly reducing the
income for the author.

One of the key questions raised by this lawsuit is what degree of
protection a right to privacy is afforded, when the individual is a “public figure”.
Should someone who labours intensively to consistently be in the media
enjoy protection of their privacy?  It seems reasonable that if anyone should
profit from this exposure, it should be the celebrities themselves, as they
have created the opportunity for financial gain.  Celebrities who rely on
their “brand” to secure endorsements or appearance fees should certainly be
afforded protection that ensures that their “brand” is not damaged or
weakened by unauthorized usage.

If however, we decide that as public figures, celebrities are “fair game”
and undeserving of this protection - do we want to have a justice system
with different rules for people based on what they do, and the attention
they receive for doing it?  Some might argue that this “tiered” justice
system already exists in the U.S. with “lighter” sentences traditionally
imposed on celebrities for a variety of charges such as driving under the
influence, or driving without a license. Celebrities ostensibly benefit
being seen in public, whether through the exposure that this generates in
magazines or newspapers or simply through the “buzz” created; it could be
argued that this self promotion is a part of their job - integral to
securing work in their industry. 
In a society obsessed with celebrity, it seems ludicrous to suggest that
protection should only be available to those who are not in the public eye
and that the rights of an individual are determined by their chosen career
path.  The only valid solution is one that recognizes the rights of
personality for all individuals, regardless of profession and offers equal
protection to all.

  1. One Response to “WHEN IS PRIVATE PUBLIC?”

  2. I generally agree with Peter’s main argument that all citizens should be afforded full protection of the constitution and judiciary without bias regarding privacy rights. However, two issues should be considered when dealing with “public figures”:

    1) Protection afforded for satire and parody under the US Constitution and common law should not be confused with affording less protection to public figures based on their particular professions. Private citizens have a limited audience, usually their families and communities, where their views may be debated in a relatively private manner. In contrast, public figures have the ability to disseminate messages openly and publicly to a large amount of people. Satire and parody are exchanged for the discussion and criticism that would normally take place at a private citizen’s family/community level.

    2) The US constitution recognizes the need for public debate by protecting satire and parody as a form of free speech. Likewise, the US Supreme Court in Hustler Magazine v. Falwell, states that a public figure can only hold a speaker liable for damage if the parody includes false statements made, “…with knowledge that it was false or with reckless disregard of whether it was false or not.” It remains at the core of the American Constitution that public figures can be criticized in the search for the truth and vitality of a society.

    When people enter the public sphere, their access to shape the minds of the population should be balanced by the right to question the views that they openly portray.

    By Nick Koutsoukis on Nov 28, 2007

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