Celebrity body parts take center stage in discussion on right to publicity

Monday, March 6, 2000

Robert Krulwich...
Robert Krulwich

NEW YORK — “You are the owner of a popular Web site called www.morph-your-favorite-celebrity.com,” said journalist Robert Krulwich, as he begin to unspool a hilarious hypothetical situation involving the assembly of disparate celebrity body parts.

Krulwich, news correspondent for “Nightline” and ABC’s “World News Tonight,” moderated the debate, “The Right of Publicity: From Fred Astaire to Dustin Hoffman,” sponsored by the Committee on Communications and Media Law and co-hosted by the Creative Committee. The panel included actor Richard Masur; St. John’s University law professor Joseph Bear; Martin Garbus of Frankfurt Garbus Klein and Selz; and Anne Noble Ervine, counsel for the Magazine Publishers of America.

The event — dealing with whether the right of celebrities to control their images erodes the First Amendment and stifles freedom of expression and the creative process — drew more than 100 people to the Association of the Bar of the City of New York on March 2.

Martin Garbus...
Martin Garbus

Krulwich continued his spiel about the Web site, placing the panel members in various roles.

“This Web site allows users to digitally manipulate the images of celebrities in humorous and provocative ways,” he said. “The Web site, with a digital database, contains thousands of celebrities as well as images of characters that they played in movies and … television. You can choose the head and then the body and then the torso of the celebrities and mix and match their images for downloading.”

He continued, “The Web site allows users to post their images to a bulletin board. The Web site also chooses and publishes the top ten morphs of the week. The top morph of this week, you ask? Cindy Crawford’s face, with Sean Connery’s hair — not any Sean Connery’s hair, but Sean Connery’s hair during the James Bond days — on Orson Welles’ body — not the thin body, but the ‘Citizen Kane’ body — then Julia Roberts’ legs.”

He turned to attorney Garbus. “Cindy Crawford comes to you for advice. Does she have a right of publicity claim against the Web site for posting the image without her consent?”

Garbus, playing his part, replied, “I think she does. She is someone who has invested a great deal of time in her celebrity and in her career. They are taking something that she has created, and they are using it in some commercial way. The only reason they use Cindy Crawford’s face is because she has done so much to make that face and likeness meaningful.”

Krulwich pulled him back with an admonition: “Does it not give you just an inkling of fear that a woman who allows 80-foot long pictures of herself to be splayed across Times Square for everyone to see, whose business plan it is to create an echo of herself on every bus and every thoroughfare that she can get herself plastered on to, does it not to occur to her that when you make yourself that public you invite copying, a certain amount of taking the image and fashioning it one way or another?”

Garbus replied, “She has commercialized herself, and she’s worked for that commercialization. The law gives her a cause of action.”

Joseph Bear...
Joseph Bear

Krulwich continued to layer nuances into the story as he pulled Beard into the equation. Beard’s advice to Garbus about the validity of Crawford’s claim? “I agree with him, as long as I get a piece of the action.” Beard likened the Web site’s technology to a game of digital Mr. Potato Head. Such a game would be covered under a trade purpose law, and the creator would have to gain permission to use the person’s image.

“It makes it a little more difficult to prosecute if no money is changing hands, but if enough people do something it turns into economic harm,” Beard said. “Other people will do it to Cindy and pretty soon there will be a saturation, and no one will want to look at Cindy and she won’t make the living.”

Richard Masur...
Richard Masur

Next Cindy visits Richard Masur. Cooling her fears about her right to publicity, Masur explains that though no money may have changed hands, Web sites have proven themselves to be 100% purely an advertising medium.

“The main purpose of a Web site is for people to advertise products on it,” Masur continued. “Whether or not the use of these images is directly connected to the advertising of those products, it’s clear that the only money anybody has a hope of making in the Web site seems to flow from the advertising that comes from getting the eyeballs onto the message.”

Cindy’s case looks pretty foolproof. Krulwich goes to Anne Noble Ervine for her opinion.

Anne Noble Ervi...
Anne Noble Ervine

“She has no case.” What? Ervine says that the Web site’s expression is covered under the First Amendment. Pretty clear and simple. What isn’t so clear is that at each juncture of Krulwich’s hypothetical situation, as he introduces more and more details, the panelists all begin prefacing their responses with, “What state are we talking about?”

Herein lies the interesting fact about the right to publicity. Typically, in New York it is difficult for a celebrity to prevail in court and easier in California. As one audience member, attorney Andrew Deutsch said testily, “Celebrities are protected in California because they got to the Legislature and got laws passed to protect themselves. In New York, publishing and media dominate. Why is there no uniformity in right to publicity and right to privacy?”

Good question.