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How Much Protection Does Copyright Law Offer?

Aired April 27, 2001 - 12:30   ET


CORRECTION TO TRANSCRIPT: The U.S. Supreme Court denied certiorari review in favor of George Wendt and John Ratzenberger. The case is headed to court this summer.


ROGER COSSACK, HOST: They were loved by generations and part of comedy culture. But when a California artist began selling T-shirts with their familiar mugs across the chest, heirs to the Three Stooges took them to court.

Today on BURDEN OF PROOF: From Tiger Woods to Vanna White to Princess Diana, who owns the image of a public figure?

ANNOUNCER: This is BURDEN OF PROOF with Greta Van Susteren and Roger Cossack.

COSSACK: Hello, and welcome to BURDEN OF PROOF.

It's a battle between intellectual property and the First Amendment, one of those battles that we always worry about. The images of public figures and who owns them? It depends on the case. In a Georgia supreme court case, the heirs to Martin Luther King, Jr., stopped the sale of plastic busts of the late Civil Rights leader. The family of Princess Diana unsuccessfully sued to prevent the sale of Diana merchandise in the United States. And in a case before a federal appeals court, golf sensation Tiger Woods -- he's trying to stop an artist from selling prints of a painting he did of Woods.

So joining us today to help sort of all of this out from Los Angeles is intellectual property rights lawyer Scott Whiteleather. Here in Washington, Dan O'Neil Ortiz (ph), First Amendment lawyer Lucy Dalglish and intellectual property law professor Christine Haight Farley. And in the back, Tony Clapsis (ph), Marissa Alter (ph) and Emily Wecht (ph).

OK, I want to go right to you, Scott. You know the -- you know the Three Stooges story. What happened here was that this artist painted or drew the likenesses of the Three Stooges, lithographed them on T-shirts and sold them, was sued. The lower courts have held that he must pay royalties to the heirs of the family. The California supreme court has now decided that they're going to look into this case. The artist says, "Just a second. This is art. This is the First Amendment. This is -- this is my ability to communicate." The heirs say, "Just a second. You're making money off of us."

Your position?

SCOTT WHITELEATHER, INTELLECTUAL PROPERTY LAWYER: Well, my position is that the T-shirts and the lithographs in question are a product. And to the extent that there may be some speech involved -- and I respect Mr. Saderup's argument -- ultimately, what he's doing is creating a product and selling it. And the problem in this particular case, when you use that First Amendment argument to say that -- that it will defeat the right of publicity -- when we're talking about a product that will, essentially, eviscerate all of intellectual property law -- it allows you to say not only can I use a First Amendment argument to defeat the right of publicity, but you can defeat copyright and you can defeat the majority of trademark law.

So even though this case is very fact-sensitive, as most of these issues are, this is one where the argument is so broad that you're really left with -- with nothing.

COSSACK: All right, let me follow up one question.


COSSACK: You agree with the theory that if I was an artist and I wanted to paint an oil painting of the Three Stooges, I could make that painting and hang it. If it was good enough, hang it in a gallery, couldn't I?

WHITELEATHER: Absolutely. And in fact...

COSSACK: And couldn't I -- and couldn't I sell that painting?

WHITELEATHER: You absolutely could. And so the issues of whether or not the artist makes money or the issue -- whether it's a commercial venture for the artist really isn't -- isn't an argument. It's really not the issue in the case because I would love to have Mr. Saderup in this particular case draw as many -- as many sketches of my clients and sell these wonderful original works of art -- in fact, it's kind of amusing because Mr. Saderup is a licensee of CMG Worldwide, so he licenses the use of Marilyn Monroe and James Dean.

So he does license my clients in many of these -- in these circumstances. How the Three Stooges fell out of that loop I'm not entirely sure. But in California, the statute specifically refers to single and original works of art. And we encourage that. I -- we actually represent a couple of artists, and so I'm...

COSSACK: Well, let me -- let me interrupt you...

WHITELEATHER: ... pleased when we do that.

COSSACK: ... and find out if...


COSSACK: ... that California statute perhaps is in a little bit of tension with the First Amendment to the Constitution of the United States.

Lucy, what about it?

LUCY DALGLISH, FIRST AMENDMENT LAWYER: Well, just because more people can see it and multiple copies are made doesn't someone transmute this expression into unprotected free speech. And you know...

COSSACK: Well, why is it free speech when I take -- when I draw the likenesses of famous people who have worked hard to become famous and so that that's what they have? They have their face. Why is it free speech for me to be able to draw their picture and sell it and these people get nothing from it?

DALGLISH: Well, because you're not selling the famous person. You are selling the expression of an artist. It is not -- it's not as if you are selling that image of a person. People who become famous have to deal with some wonderful things and some burdens, as well. And what a piece of art is that depicts a person is the expression of an artist and the thoughts and the feelings and the work of the artist, not the subject of the art.

Otherwise -- you know, a good example would be to say the Gilbert Stuart painting of Washington would -- and copies of it would not be protected, but if I were to go out and try to sell a Frederick Church (ph) painting of a Hudson landscape and make copies of that, there's no problem. Just because the art is of a person does not take it out of the protection of the First Amendment.

COSSACK: Christine, it seems that you have -- we have two competing arguments. One competing argument, Lucy's argument would seem to say that a person who becomes a celebrity, who has made a recognizable expression or face for themselves, has no protection when someone else uses that -- that -- their fame because the First Amendment protects it. And of course, what's Scott's saying is, "Look," you know, "obviously, that's -- that's of value to them. That's worth something to them. They should get paid for it." Which one?

CHRISTINE HAIGHT FARLEY, INTELLECTUAL PROPERTY LAW PROFESSOR: Well, the law is in the middle, as it should be.

COSSACK: As well it should be, huh?

FARLEY: A famous person has some rights to their person, to their celebrity. They've built up this celebrity. It's a commodifiable. They have a value in it. And presumably, they understand that value and they take actions to make their celebrity status something that people would want to use to advertise products and services.

And so trademark law affords them this right. They can't -- someone can't use a celebrity face to advertise a product and to sell it, implying that the celebrity has endorsed that product. But nonetheless, all intellectual property is balanced by First Amendment. And that's a very serious balance that we've always understood, since the beginning of intellectual property, but we seem to not pay as much attention to now when we're at the time when we really need to spend more time thinking about the balance between First Amendment and intellectual property.

Intellectual property are growing and expanding. We're finding them in different places. This right of publicity is only about 50 years old. And we really need to understand what the proper balance would be between First Amendment rights and the right of publicity.

COSSACK: Scott, in your argument, though, is there any room for the First Amendment?

WHITELEATHER: Oh, there absolutely is. And I think, you know, Lucy is correct also when we start talking about that balance and the issues with -- with the First Amendment. Every one of these cases...

COSSACK: Well, tell me how we could balance this situation with the Three Stooges? I mean, how would you -- how could we balance that, then, where an artist wants to make a statement, as he claims, and you claim that you're taking advantage of a -- of a right of publicity?

WHITELEATHER: Certainly. Certainly. And I think in the case of the Three Stooges, I would argue that that particular set of facts is on the outer limits. I tend to look at that and say that the average people who would see the facts of this case would say common sense tells you that a T-shirt is a product, and that it is based on that. He's just -- Mr. Saderup is essentially using the image of the Three Stooges for that purpose, to put it on a product. So I guess to the extent that I would say there's much room in that particular set of facts, I'd say that's pretty much on the outer limits.

COSSACK: All right. Let me interrupt you...

WHITELEATHER: But with the Tiger Woods case...

COSSACK: All right, we're going to get to...

WHITELEATHER: ... I think it's a finer line.

COSSACK: We're going to get to that Tiger Woods case and some other cases when we come back because, you know, we're also going to talk about sometimes, you know, everyone -- every -- sometimes you want to go where everyone knows your name.

You know, I couldn't do that when we rehearsed it. I still can't say it!

But you'll sue if they use your likeness. A Supreme Court battle over robotic copies of two TV barflies after this short break.

Stay with us.


A Florida judge gave an emergency order Thursday to resume life- support feeding for Terri Schiavo, who has been comatose for 11 years. Terri's husband had court approval to cut off her food supply Tuesday. Her parents claim they can prove that he lied in court about Terri's wishes regarding life support.



COSSACK: In legalese, it's called the "right of publicity." The law gives sports heroes and Hollywood stars the sole ability to cash in on their names and faces. Now, actors John Ratzenberger and George Wendt, also known as Cliff and Norm, sued Paramount to keep robotic replicas of the beloved "Cheers" characters away from the barstools -- the one I couldn't say earlier. But the U.S. Supreme Court ruled that the television company created the characters and has the right to use those images for other commercial use.

All right, Christine, tell me about George and Cliff, two of my favorite characters, even though I can't seem quite to get the names straight.

FARLEY: Right. Well, George and Cliff are characters, and so the producers of the show "Cheers" licensed the use of the characters in these Cheers bars that we see in airports, where you go to the bar and you see a heavyset guy and a guy...

COSSACK: The two robots that look...

FARLEY: They're robots.

COSSACK: ... just like those figures...

FARLEY: They're robots, right.

COSSACK: ... in the "Cheers" show.

FARLEY: And so there obviously is some intellectual property in the show that the producers of the show own, and the show licensed that intellectual property. But then the actors who played those characters said "They look like us, and that's our right of publicity at stake. And so we have property rights at stake here, as well," and sued for those, even though they were robots.


FARLEY: And they were really portraying the characters, right? It looked like the "Cheers" set, and those -- those actors have done other things, and they weren't just looking like them in other contexts but as those characters.

COSSACK: And so they claim, "Look, we created these people. We are these people"...

FARLEY: Right.

COSSACK: ... "for the purposes of getting -- of ourselves." FARLEY: Right.

COSSACK: "You owe us some money. You have to license these characters that somebody created for us to play but we kind of personify."

FARLEY: Right.

COSSACK: What'd the courts hold?

FARLEY: Well, it -- the Supreme Court decided not to take it. It had -- it had gone as high as trying to get the Supreme Court to take an interest in it. And this is a question that a lot of lawyers have in the area. The Supreme Court hasn't looked at these issues in almost 30 years. And it's -- a lot of people feel it's ripe for the Supreme Court to look at it. That may have been a very good case. It follows another case, the Vanna White case, which is another case about a robot that somehow evokes a celebrity and yet doesn't look like a celebrity.

COSSACK: All right, let's talk about Vanna White a second. I want talk about Tiger Woods now.

DALGLISH: Tiger Woods.

COSSACK: All right, now, Tiger Woods -- an artist came along and painted a portrait of Tiger Woods. And we've all agreed that you can paint the portrait of famous people, hang them in a gallery, if you will, and sell them, if you will. And there doesn't seem to be any violation of copyright law of that. The problem here became when the man took lithographs and began to sell the lithographs, that is, copies of the painting. And I think you have one with you.

DALGLISH: I have one with me. Would you like to see it?

COSSACK: I think for the purpose of whether or not we're going to still stay on the air after this show, because we're violating copyright laws, let's put that up. Is there any way we can see that? Can we see that? OK. that is a copy -- and it says "The Master of Augusta." And this artist painted this picture and then made lithographs.

Now, Tiger Woods goes to court and says, "You can't do that. You are taking advantage of my celebrity status." What happened?

DALGLISH: Well, it's in the 6th Circuit, at the moment. Tiger Woods lost in a lower court...

COSSACK: One of the few times Tiger Woods loses.

DALGLISH: One of the few times he loses, yes! He lost at the lower court because the judge said it was protected speech and essentially accepted the artist's or the publishing company -- the artist is not being sued, his publishing company is. They accepted the argument that this is expression and hat this is Rick Rush (ph), the artist's, expression and his ideas surrounding Tiger Woods. And it came out -- and Tiger Woods is not the only thing on this painting. You can see the Augusta clubhouse. There are some other artists...

COSSACK: All right. Now, Scott, why is this any different from the Three Stooges? I mean, here's a picture of -- here's a guy who's painting a picture of a picture. Is this any different from the Three Stooges, who's -- only one of the Stooges -- you're just putting it on a T-shirt.

WHITELEATHER: Well, no, no. Absolutely, it's distinguishable. And it is due, in part, to the fact -- you'll notice that, again, Tiger is not the only person in the photograph. There is some sense of a story. There is something more than simply Tiger Woods. And while this is definitely a gray area, and the question of trying to determine whether or not 5,000 impressions, 5,000 copies of that particular piece of art makes any difference -- I'm not sure that it really does.

But if you compare that now to the Three Stooges -- the Three Stooges was nothing but their faces, their images. It was a charcoal sketch of their images. And he also was selling them on lithographs at the same time that he was selling them on T-shirts. So I think Tiger Woods is, first of all, one that was decided under Ohio law, so it's slightly different. And one of the major arguments in that particular case was a trademark argument, rather than the right of publicity. So again, each one of these becomes so very fact-sensitive that it -- it's sort of easy to separate them out.

COSSACK: But wouldn't you say how -- wouldn't you agree with me how gray these areas become when, you know, we have two situations which are pretty similar, and we have two courts coming up with completely different interpretations of what the law should be?

WHITELEATHER: I would absolutely agree with you. And that is the difficulty with this -- this balancing act that we always are faced with in the areas of intellectual property. We've always had to balance with the First Amendment. There's no question. The biggest problem that we have when we start talking about right of publicity is that it is a state right, at this point. And because of that, we have different states -- currently, there are 25 states that recognize a right of publicity. Some represent a descendent's right of publicity. Some don't.

COSSACK: All right, let me interrupt you...

WHITELEATHER: And so you get this hodgepodge.

COSSACK: ... because when we come back, I do want to talk a little bit about what the law is and perhaps what the law should be. I want to tell our viewers, though, that before you start printing those Elvis T-shirts or Tiger Woods prints, you better check out on that law because we'll be telling you about it.

Don't go away.


Why was a Massachusetts woman arrested outside the home of White House press secretary Ari Fleischer?




Why was a Massachusetts woman arrested outside the home of White House press secretary Ari Fleischer?

For allegedly stalking him. The woman was arrested Tuesday night and charged with stalking and unlawful entry.


COSSACK: OK, there you are, painting a picture of your favorite rock star, and suddenly you find yourself in the middle of a lawsuit. So should these laws be changed to protect the innocent artist?

All right, I want to start -- I want to start right with you. Should the -- should the laws be changed, as they are right -- to change right now to protect this person who's an artist, who wants to make a statement through his art or her art?

FARLEY: I don't think the law needs to be changed. I think the law already protects the artist in a situation like this. And I think when you balance the constitutional free expression right with a state common law or statutory right, we traditionally have gone in favor of protecting an individual's free expression rights.

COSSACK: But Christine, I think if you accept Lucy's argument, what you're really saying is that if there -- if the First Amendment trumps, as I think you're saying, then is there any more right to -- is there any value in the right to publicity anymore, or is that just one of those things we give up because we have the First Amendment in this country?

DALGLISH: No, we don't give it up. We've always balanced the First Amendment with all of the intellectual property rights, as I've said. And nevertheless, we have very strong intellectual property rights in this country. I think some states in their interpretation of their common law or in their statutes maybe have shifted it a little bit too far in favor of the property rights over the First Amendment rights. And I would not be in favor of a federal right of publicity.

And I think the people who are most interested in pushing the expansion of intellectual property rights to have a broader notion of the right of publicity would like to see a federal statute. And their argument is that we need clarification. There's too much difference from state to state. And very often, these are cases that can't be really confined in a state. You know, these images or this merchandise is going, you know, everywhere.

COSSACK: Scott, do we need some kind of a federal statute that would define these rights for us? And is that something that's really -- that would really be desirable? Would we really want something that was different -- wouldn't we really want to decide this on a fact -- on a case-by-case basis?

WHITELEATHER: Well, I think you're still going to be deciding the specific case on the facts. However, I absolutely believe that we need a federal statute so that we have -- we have some consistency and some clarity in this issue. Even with a federal statute, we're still going to have the balancing and the continual tension with the First Amendment, which I think is good. It still allows us to recognize on a case-by-case basis whether or not something is a product and whether or not we see it as something that just common sense tells you this is not a First Amendment expression in the same fashion. So I absolutely agree with that.

COSSACK: Scott, if the heirs of Abraham Lincoln decided that they didn't want the Gettysburg Address printed on the back of a T- shirt and sold, could that be stopped?

WHITELEATHER: Absolutely not.


WHITELEATHER: It's long since been -- well, actually, the longest -- the longest statute -- I take that back. I think Oklahoma lasts forever -- right of publicity statute. In the case -- Indiana lasts for 100 years after the death of the individual. So again, it's similar to copyright. It's for a limited time. And that's another key element of the right of publicity. It's not that this individual has this right, you know, in perpetuity. So in the case of Abraham Lincoln, no.

COSSACK: OK. Lucy, what about Martin Luther King and what his family has requested?

DALGLISH: Well, that's an interesting example of wanting to protect that image and make sure that...

COSSACK: The "I have a" -- the "I have a dream."

DALGLISH: The "I have a dream" speech.


DALGLISH: And they -- their position pretty much was clear. "We own this in its entirety, and we are the ones that are going to make money off of it." Now, it's kind of akin to the Zucchini (ph) case. You mentioned earlier it's been 30 years since they've considered a case like this. One of the reasons this guy who got shot out of a cannon as the human cannonball -- one of the reasons he won was that the show filmed -- the new show filmed it from start to finish, and they said, "You took all economic benefit from his entire performance."

COSSACK: We just have a short time left. Let me ask you this. What -- does there come a time when something like the "I have a dream" speech becomes part of Americana and there are no protective rights in that?

FARLEY: Right.

COSSACK: And when would that be?

FARLEY: Well, you know, I don't -- I can't give you a specific answer on that specific question, but I think that's -- that's exactly right. And I think we have to recognize that in broader works than just the "I have a dream speech," but in Three Stooges even -- I mean, this is -- this is our lexicon. This is how we communicate with one another.

COSSACK: It's only BURDEN OF PROOF that gets from the "I have a dream" to the Three Stooges.

FARLEY: Right!


COSSACK: That's all the time we have for today. Thanks to our guests. Thank you for watching.

Today on "TALKBACK LIVE," radio talk show host Neal Boortz hosts free-for-all Friday, your chance to talk about news of the week. And that's at 3:00 PM Eastern time.

And I'll be back Monday with another edition of BURDEN OF PROOF. See you then.



4:30pm ET, 4/16

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