Re: digital-copyright Digest 3 Mar 2009 16:00:00 -0000 Issue 865

[Kathrine Henderson <kathrinehenderson@xxxxxxxxx>]

Hi All,

Last Thursday, 2/26. Fresh Air on NPR had an hour long discussion on
the question of use of a "famous" figure.  Context is the debate over the
Obama Hope poster, but the context was broader and two core cases are cited
which may offer insights into the matter.  I'd give you the cites, but I was
listening while I drove to a meeting--I didn't catch all, but what I did hear
was very interesting.  Title of show is Shepard Fairey, Inspiration or
Infringement.  Greg Lastowka was interviewed--I'm not familar with his work,
but others of you might be.

Here is a link: 
http://www.npr.org/templates/rundowns/rundown.php?prgId=13&prgDate=02-26-2009
&view=storyview  

Kat



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Sent: Tuesday, March 3, 2009 9:00:00 AM
Subject: digital-copyright Digest 3 Mar 2009 16:00:00 -0000 Issue 865
digital-copyright Digest 3 Mar 2009 16:00:00 -0000 Issue 865

Topics (messages
1618 through 1619):

Re: Rights to the likeness of Personalities
    1618 by:
Patrick Lemelle
    1619 by: Harper, Georgia K

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----------------------------------------------------------------------
Date:
Mon, 2 Mar 2009 10:41:41 -0600
To: "Jack Boeve" <JBoeve@xxxxxxxx>,
<digital-copyright@xxxxxxxxxxxxxx>
From: "Patrick Lemelle"
<Patrick.Lemelle@xxxxxxxx>
Cc: "Yu Li" <YU.LI@xxxxxxxx>
Subject: RE: Rights to
the likeness of Personalities
Message-ID:
<F2E0854C023A0D4CB1DAD7B4DC38BA8F026B3389@xxxxxxxxxxxxxxxxxxxxx>

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
------------------------------

Date: Tue, 3 Mar 2009 07:46:37 -0600
To:
Patrick Lemelle <Patrick.Lemelle@xxxxxxxx>,
 
"digital-copyright@xxxxxxxxxxxxxx" <digital-copyright@xxxxxxxxxxxxxx>
From:
"Harper, Georgia K" <gharper@xxxxxxxxxxxxxxxxx>
CC: Yu Li <YU.LI@xxxxxxxx>
Subject: Re: Rights to the likeness of Personalities
Message-ID:
<C5D290DD.E3B5%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

------------------------------

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digital-copyright Digest
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