Right of Publicity and Fair Use
Rightof Publicity and Fair Use
FairUse is a legal principle that supports liberty of expression byallowing the unlicensed utilization of works with protected copyrightin given situation (U.S. Copyright Office, 2016). In order todetermine whether the work follows under Fair Use, four factors areused. They include the character and purpose of the use, nature,substantiality and amount of the portion and the use outcome upon thepotential market for the copyrighted work (U.S. Copyright Office,2016). Similarly, the Publicity Right refers to as a person’s rightto profit and control the business use of their persona, likeness orname (Faber, 2017). Claiming that the Publicity Right has beenviolated, the plaintiff should proof that the defendant has used theidentity of the plaintiff, appropriated the likeness and name of theplaintiff to benefit the defendant, lack of permission andconsequential to injury (Barfield, 2015). Therefore this paper seeksto evaluate four examples to show whether they meet or they don’tsatisfy the conditions of the .
Forinstance, in the case of Caner v. Autry, the court agreed that allthe four requirements were present to qualify the case as a Fair Use(U.S. Copyright Office, 2016). The reasoning was that Autry thedefendant had posted some videos of Caner the Plaintiff to websitessuch as YouTube supporting the claims that Caner had produced on hisbackground aspects. The defendant’s purpose of using the work tocomment on the reality of the statements of the plaintiff wassignificant in character and satisfactorily transformative to gaugein support of Fair Use. Also, the truthful nature of the videos (theworks) favored the side of Fair Use. Moreover, the substantiality andamount of the work utilized were acceptable in regards to Fair Use.Lastly, concerning the effect of the use by the defendant on thework’s market, it did not weigh in opposition to Fair Use. The factwas that the videos usage was most likely to curb criticism of theplaintiff instead of benefiting the defendant (U.S. Copyright Office,2016).
Conversely,in the case of Gaylord v. the United States, Fair Use was not foundbecause all conditions were not met. In this case, the defendant (theUS Postal Office) used fourteen portraits of American soldiers out ofthe nineteen that the plaintiff had created in memory of the KoreanWar to commemorate the fiftieth anniversary (U.S. Copyright Office,2016). The court found that the fact that the defendant used thepictures of the sculpture of the plaintiff without his permission didnot depict a Fair Use. Furthermore, no transformative use was foundon the portraits despite adding snows and colors because the twoadditions provided a common purpose of remembering the war veterans.Moreover, there was a commercial use because the defendant earnedmore the seventeen million dollars from selling the stamps. Also, theamount of work used that is 14 pictures out 19 was contrary to FairUse (U.S. Copyright Office, 2016). Nevertheless, the court did notfind any harm relating to the market and the value of the plaintiff’swork. However, the court decided that more factors were contrary toFair Use than the one with no harm to the work of plaintiff.
Thecase of Ali v Playgirl is portrayed to meet all the requirements ofthe Right of Publicity. The magazine planned to publish a portrait ofthe undressed black man strongly resembling Ali (Barfield, 2015). Thepicture was a depiction of an artist man seated at the boxing ringcorner on a stool. His hands were outstretched and taped relaxing onthe ropes containing a verse and a caption of “the Greatest” and“Mystery Man” respectively (Barfield, 2015). Ali proceeded to thecourt to claim that the Playgirl had violated his Publicity Right ofstatutory and Common Law. The reason being that the picture resembledAli who used to declare himself as “the Greatest” in his boxingcareer. The court concurred with Ali’s claim on the basis that thePlaygirl had damaged the boxer’s reputation by using his identityto benefit the company without his consent.
Onthe other hand, the example of Cardtoons, L.C. v. Major LeagueBaseball Players Association does not meet all the requirements ofthe Right of Publicity’s violation. The reasoning was that, eventhough the Cardtoons, L.C sold cards of parody trading with cartoonsof famous players of baseball without their consent, the FirstAmendment protected the speech involved because it was not meant forcommercial purpose (Faber, 2017). Then, there was no injury caused tothe plaintiff instead, it promoted them. Therefore, the court closedthe case by stating that the communicated worth of the cardsspecifically by commenting the usefulness of the state’s leisuretime overshadowed the Publicity right of Interest (Faber, 2017).
Inconclusion, both the require fourconditions to be met to know if the right has been violated or notand if there was Fair Use or not in the case of utilizing acopyrighted work. However, this paper has just evaluated fourspecific examples showing whether or not the conditions were met.
U.S.Copyright Office. (2016). SearchCases | U.S. Copyright Office.Retrieved April 12, 2017, fromhttps://www.copyright.gov/fair-use/fair-index.html
Faber,J. (2017). Right of Publicity. Retrieved April 11, 2017, fromhttp://rightofpublicity.com/
Barfield,W. (2015). The right of publicity in virtual reality. VirtualReality,11(1),69-70. doi:10.1007/s10055-006-0066-y
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