Re: Rights to the likeness of Personalities

["Harper, Georgia K" <gharper@xxxxxxxxxxxxxxxxx>]

Patrick, what you describe (total lockup of a person's image) rings absolutely
no bells within the reality of any law I know of. It is not possible, as far
as I know, to trademark the image of a public persona such as Cesar Chavez.
Even if his image were included as a part of a trademark, it would likely have
to be "disclaimed" because of his status as a public persona. The PTO requires
that any part of a trademark that is too widely used to be uniquely associated
with a particular good or service be "disclaimed," while other unique aspects
of the mark enjoy protection. Not every part of a mark need be (or sometimes
can be) protected. The image of a public persona is so widely known, so widely
used and so utterly unable to be roped into meaning one and only one thing
(which is what a trademark does) that it would most certainly be rejected by
the PTO as a mark or a part of a mark.

One of the most expansive "ownership" claims of which I am aware is the King
estate's iron grip on images of Dr. MLK, Jr. But even then, the laws that
protect against commercial exploitation of a person's image (i.e., the
publicity right), are quite circumscribed. A scholarly critique, a news story,
even a blog post on King could all expect to use an image without permission.
Only commercial exploitation (i.e., the use of the image in a way that draws
upon the fame or reputation of the person, to make money or derive other
commercial benefit for someone other than the person or person's estate in
those states that permit the publicity right to survive the death of the
person) comes within the ambit of publicity law. For example, using his image
in a film for distribution on PBS would need permission. The sculptor and UT
Austin, for the creation of the MLK sculpture on the grounds of UT Austin's
campus, obtained permission. But classroom use, even website use that is not
commercial is impossible to regulate through the right of publicity.

And of course, as we all must know, copyright law was never intended to be
seamless and all-powerful. It is quite full of flexibility -- provisions that
allow use without permission. Fair use is the best, but by no means the only,
example.

At least in the US, anyone claiming to own and totally control use of a public
persona's image must be dreaming (a megalomaniacal dream).

G



On 3/2/09 10:41 AM, "Patrick Lemelle" <Patrick.Lemelle@xxxxxxxx> wrote:

Hello Jack and All who may receive this message:

If someone, or some organization claims ownership to all likenesses, of
a particular personality, "Trade marking", (for instance, images of Mr.
Cesar Chavez), does it mean that no one else may use that likeness in a
book, or any public media without permission? Are there limits to what
"Trade marking" can control and can't control?

I truly appreciate any help I can receive regarding this issue.

Kind regards,

Patrick Lemelle
Program Coordinator - Library
UTSA's Institute of Texan Cultures
801 South Bowie Street
San Antonio  TX  78205-3296
Phone: (210) 458-2298
FAX:   (210) 458-2219
patrick.lemelle@xxxxxxxx




--
Georgia Harper
Scholarly Communications Advisor
University of Texas at Austin Libraries
512.495.4653 (w); 512.971.4325 (cell)
gharper@xxxxxxxxxxxxxxxxx