The Governator Turns Litigious!

[JSngry]

C'mon man, you're a politician now. The rules are different.

http://www.nytimes.com/2004/05/18/national/18arnold.html?th

Schwarzenegger Files Suit Against Bobblehead Maker

By JOHN BRODER

Published: May 18, 2004

LOS ANGELES, May 17 - Arnold the Litiginator?

Gov. Arnold Schwarzenegger's film production company filed a lawsuit last week against a small Ohio toy maker, claiming that the company's $19.95 Schwarzenegger bobblehead doll illegally exploits his image for commercial purposes. The suit says that Mr. Schwarzenegger is an instantly recognizable global celebrity whose name and likeness are worth millions of dollars and are solely his property.

Ohio Discount Merchandise Inc., a family-owned business in Canton, came out earlier this year with a line of dolls of political figures, including Senator John Kerry of Massachusetts, former Gov. Howard Dean of Vermont, Gen. Wesley K. Clark and Representative Tom DeLay of Texas. The company has long sold bobbleheads of public figures and celebrities. Its two biggest sellers are likenesses of Anna Nicole Smith and Jesus Christ.

But when the company added a doll of Mr. Schwarzenegger last month, wearing a gray suit and a bandoleer and brandishing an assault rifle, lawyers for the California actor-turned-politician pounced.

First in a letter, and then days later in a lawsuit filed in Los Angeles Superior Court, Mr. Schwarzenegger's lawyers contended that the toy company and its president, Todd D. Bosley, had violated the governor's rights to his image. They cited several California and federal cases that support a public figure's right to control the use of his name and likeness, and to be paid royalties if they are used to sell products.

"California has very strong laws that protect celebrities," said Martin D. Singer, the lawyer for Mr. Schwarzenegger and his company, Oak Productions Inc. "His name, voice and likeness are not in the public domain. If you use them for commercial purposes, you are potentially liable for damages."

Mr. Bosley says the governor should lighten up. The dolls are meant as a political parody and are thus protected under the First Amendment. Besides, he said, part of the profits go to a cancer charity.

"Obviously we're making a little bit of fun of Arnold with a caricature of him," Mr. Bosley said. "No other politician has done this. Jimmy Carter sent me a book. Hillary Clinton signed one and sent it back to me. Rudy Giuliani carried his around with him to several of his speeches. We've never had a problem like this."

The case pits two legal concepts against each other, the First Amendment's protection of free speech and political commentary, and the "right of publicity," a branch of trademark and copyright law that protects an individual's image and voice from unauthorized commercial use by third parties.

The courts have tried to define the difference between protected speech and copyright infringement, though several rulings have left a large gray area, said Eugene Volokh, professor of law at the University of California, Los Angeles.

Use of a public figure's name, voice or likeness is permitted for journalistic purposes and as an artistic or political statement as long as the artist "transforms" the image into an original work, according to several court rulings.

The California Supreme Court ruled in 2001 against an artist who rendered an image of the Three Stooges on a T-shirt without making an original statement about them. But last year, the same court ruled in favor of the DC Comics division of Time Warner, which produced a takeoff on the rock musicians Johnny and Edgar Winter, creating figures it called the "Autumn Brothers," half-human, half-worm creatures. The parody was deemed original enough to warrant protection under the First Amendment.

"People have a right to stop their name and likeness being used in commercial advertising, for things other than books and biographies," Professor Volokh said. "If someone's image is used without much transformation, if it's not a parody or commentary, that is indeed legally actionable, and under that theory Arnold has a very good claim."

Hollywood celebrities zealously guard their images and likenesses, he said. Those are, after all, their livelihood. Bette Midler successfully sued the Ford Motor Company in the 1980's after Ford used a sound-alike singer in its advertising. Elvis Presley's estate has filed numerous suits to try to banish the King's unauthorized images from T-shirts, coffee mugs and velvet paintings. Mr. Singer said that Bruce Willis, Denzel Washington and Tom Cruise have all recently sued over unauthorized use of their images.

That noted, Mr. Volokh said, it is rare for a politician to file a claim based on the right of publicity. "It just doesn't look good when a public official tries to sue this way," he said. "It makes him look like a heavy. It makes him look humorless. It makes him look like he doesn't want his constituents to express themselves this way."

Mr. Bosley said that while he felt significantly outgunned by Mr. Schwarzenegger and his team of Hollywood lawyers, the case has become a matter of principle for him.

"There's a lot at risk here for me and a lot at risk in the future for people like me," said Mr. Bosley. "Do we succumb to threats and heavy-handedness? Or do we stand up for what America really is?"

A San Francisco intellectual-property law firm, Townsend & Townsend & Crew, has taken on the case at no charge. William T. Gallagher, a partner at the firm, said that Governor Schwarzenegger cannot expect to be immune from satire.

"It's clearly a parody," Mr. Gallagher said of the doll. "It is also making a statement about the cult of celebrity in America. If you're famous, then suddenly you're highly electable. That's what the bobblehead does. It is a transformative statement and absolutely protected under the First Amendment."

Not so, replied Mr. Singer. The doll, he said, is nothing more than a rip-off of Mr. Schwarzenegger's solid-gold image, which other companies have paid millions of dollars for the right to use in advertising and marketing.

"Arnold has always been very vigilant about uses of his image. The reason is his name, photo and likeness are one of the most valuable in the world," Mr. Singer said. "It's not being a bully when you're looking at people taking advantage of somebody and making commercial exploitation for their own benefit."

[RainyDay]

Note to RainyDay:

Start a thread about how the Governator has put energy deregulation back in operation in California and let the companies that stole from us off the hook.

Also, start a thread about how the Governator is taking 25-40% of property tax revenues from special districts, most of which happen to be in the East Bay. This will effectively gut bus service for AC Transit in the Oakland/Berkeley area, and for BART, a regional long haul rail operator. It will also decimate the East Bay Regional Parks District. Just doing our share to make the asshole in the Gov's Mansion look like a prince.

Then note the State Budget Analyst's report out today that says the Gov's budget makes the state budget crisis worse. But hey, we have a MOVIE STAR in Sackammena. Who cares?!