Re: Rights to the likeness of Personalities

[BHolaback@xxxxxxx]

How about the use of President Obama, one of his speeches, as part of a  
documentary. Documentary will not be a non-profit  project.
 
 
In a message dated 3/3/2009 8:48:20 A.M. Eastern Standard Time,  
gharper@xxxxxxxxxxxxxxxxx writes:

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



**************A Good Credit Score is 700 or Above. See yours in just 2 easy 
steps! 
(http://pr.atwola.com/promoclk/100126575x1219957551x1201325337/aol?redir=http:%2F%2Fwww.freecreditreport.com%2Fpm%2Fdefault.aspx%3Fsc%3D668072%26hmpgID
%3D62%26bcd%3DfebemailfooterNO62)