Judicial Ideology and Right of Publicity Cases


William Patry, the Mack Daddy of Copyright, has a fascinating post entitled, "The Effect of Judicial Ideology in IP Cases," on his eponymous blog.  (Ah, I finally found a way to use "eponymous.")

Patry discusses an empirical study by Professors Matthew Sag, Tonja Jacobi and Maxim Stych, posted here on the Social Science Research Network, in which the authors present the results of their examination of the past 22 years of Supreme Court decisions in the fields of patents, copyrights and trademarks.  According to the abstract of their article, their analysis shows "that ideology is a significant determinant of cases involving intellectual property rights."  Even more interesting, ideology seemed to dictate different results depending upon the type of intellectual property involved, e.g., the Justices were more likely to vote against a trademark owner but for a copyright owner.

On a less scholarly basis I have noticed similar -- and similarly unexpected -- ideological divides in lower courts in the field of right of publicity.  Given that the right of publicity is a property right, judges from which end of the political spectrum are more likely to protect it?  Wrong.

A good example is  White v. Samsung Electronics America, 971 F.2d 1395 (9th Cir. 1992), where the Ninth Circuit had to decide whether a humorous Samsung print ad featuring a robot in a blonde wig posed in front of a Wheel of Fortune set violated Ms. White's right of publicity.

Judge Alfred Goodwin wrote the majority opinion -- the same Judge Goodwin who wrote the opinion in Newdow v. U.S. Congress, 292 F.3d 597 (9th Cir. 2002), holding that inclusion of the words "under God" in the Pledge of Allegience violated the Establishment Clause of the First Amendment:

The Pledge, as currently codified, is an impermissible government endorsement of religion because it sends a message to unbelievers “that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.”

But when confronted with the First Amendment claims of Samsung, Judge Goodwin had no trouble rejecting the parody defense and ruling in Vanna White's favor:

The ad's spoof of Vanna White and Wheel of Fortune is subservient and only tangentially related to the ad's primary message: “buy Samsung VCRs.” Defendants' parody arguments are better addressed to non-commercial parodies.The difference between a “parody” and a “knock-off” is the difference between fun and profit.

Contrast that ruling with this excerpt from the conservative Judge Alex Kozinski's stirring dissent from the denial of rehearing en banc in that case:

 The panel's opinion is a classic case of overprotection. Concerned about what it sees as a wrong done to Vanna White, the panel majority erects a property right of remarkable and dangerous breadth: Under the majority's opinion, it's now a tort for advertisers to remind the public of a celebrity. Not to use a celebrity's name, voice, signature or likeness; not to imply the celebrity endorses a product; but simply to evoke the celebrity's image in the public's mind. This Orwellian notion withdraws far more from the public domain than prudence and common sense allow. It conflicts with the Copyright Act and the Copyright Clause. It raises serious First Amendment problems. It's bad law, and it deserves a long, hard second look.

The  Vanna White case is only one of many such cases where the clash of First Amendment values and celebrity property rights produces intriguing ideological alignments.  Indeed, check out Judge Kozinski's equally stirring dissent from the denial of rehearing en banc in Wendt v. Host International, where he is joined by Bush Sr.-nominated Judge Kleinfeld and Carter-nominated Judge Tashima.

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