Piggyback publicity irks 2 NBA players

Friday, July 8, 2011

Editor’s note: A federal judge has dismissed Chris Bosh’s lawsuit against Allison Mathis.

So you’re famous, or you know someone famous. You may be exactly the kind of person reality television producers are looking for in these days when so many people are hoping to cash in on their 15 minutes — or more — of fame.

Many reality-show participants believe the programs will jump-start their careers, perhaps leading to book deals, product endorsements, other television appearances, other perks of fame.

But what happens when a not-yet-famous person is on a reality show only because of her connection to someone famous? And what if that celebrity isn’t so keen on having the hanger-on spill her secrets on a reality show?

Recently two former paramours of National Basketball Association players hoped reality television would garner them such fame. Shed Media produces the program “Basketball Wives” for VH-1. “This series is about the insider life of the wives, girlfriends and a few ex-wives of some of the biggest ballers in the game,” Shed’s website says. “These ladies live the life. They drive the best cars, live in the biggest mansions, wear designer clothes and jewelry and only travel first class. But living the high life is not all glamour. In order to protect it, they have to deal with the jealousies and dramas of living in — and staying in — the inner circle.”

But Chris Bosh of the Miami Heat and Gilbert Arenas of the Orlando Magic are trying to prevent their exes, Allison Mathis and Laura Govan, from participating in the program. Both men have filed lawsuits in U.S. District Court in California recently with a laundry list of claims, including trademark infringement, right of publicity and misappropriation of likeness. Mathis is now counter-suing Bosh because she alleges “Basketball Wives” dropped her from the series after Bosh complained. (Bosh’s suit is proceeding anyway.)

Bosh and Arenas claim that the exes are profiting from their connection to them, and that by the women’s participation in “Basketball Wives” it appears that the players endorse the program. In their complaints both basketball players say the women should not be able to hide behind the First Amendment. In Arenas’ lawsuit he says his ex and Shed Media “are not ‘expressing’ anything other than their attempt to profit” from his fame.

Are the players’ lawsuits a form of intimidation and will likely be settled? Possibly. Do Bosh and Arenas hope not to have details (possibly negative) about their lives aired on national television, thereby tainting their images? Certainly. Did Shed Media pursue Mathis and Govan because of their connection to NBA basketball players? Most definitely. Is it illegal for Mathis and Govan to share details about their relationships with these celebrities? It shouldn’t be.

The right of publicity has been defined as the right of an individual (celebrity or not) to control the commercial use of his name, image or likeness. There is no federal law regarding the right of publicity. The U.S. Supreme Court has addressed a right-of-publicity claim only once and the case, Zacchini v. Scripps-Howard Broadcasting Co. (1977), was narrowly decided in favor of the plaintiff, whose performance as a human cannonball was aired in its entirely. Most states have right-of-publicity statutes or common-law protections in this area.

Bosh and Arenas are suing under the right-of-publicity law in California — a state widely known to provide more protection in publicity-rights actions than other states. Basically, the NBA players want to courts to bar Mathis and Govan from appearing in “Basketball Wives.”

Often there is a tension between publicity-rights claims and the First Amendment. Courts balance the right of the individual who claims his image is being used for commercial gain and that of the defendant who asserts a First Amendment-based argument.

Today’s celebrities know the importance of capitalizing on the economic value of their names. Right-of-publicity claims make sense if an advertiser uses a celebrity’s voice or likeness without compensation in a purely commercial advertisement. But they make less sense — or more directly damage First Amendment interests — if they are used to censor entertainment, biographies, news reporting and similar expression.

If you follow the logic of Bosh’s and Arenas’ claims, then all tell-all books, exposés and TV shows about a celebrity would have to receive the celebrity’s prior approval. Such claims likely will not hold up in court. As J. Thomas McCarthy writes in The Rights of Publicity and Privacy, courts have found that “the right of publicity cannot be used as vehicle to stifle undesired discussion and legitimate commentary on the lives of public persons.”

Mathis and Govan are unlikely to cause any economic harm to Bosh or Arenas. As courts have noted, interest in a celebrity may actually increase through such indirect exposure. The two women hope to gain fame for themselves, and yes, initially it will be because of their connection to the basketball players.

Bosh and Arenas unfortunately have lost sight of their exes’ free-speech rights. Benefiting from knowing a celebrity does not mean one forfeits First Amendment freedoms guaranteed by the Constitution.