A DISCUSSION OF LAW AND JOURNALISM

RAINN-ing on Charlie Sheen

sheen

By Matthew Catania

Thanks to his kooky quotations and unapologetically brazen behavior, Charlie Sheen is winning the culture war despite being fired from Two and a Half Men. After breaking the Guinness World Record for fastest person to reach 1 million followers on Twitter, he’s taking his rambling diatribes on a multi-city tour called “Charlie Sheen LIVE: My Violent Torpedo of Truth/Defeat is Not An Option Show.” (Let’s hope the rest of the tour goes better than the kickoff performance in Detroit). But not everyone is a fan. Many of his detractors believe that his cult of personality encourages the abuse of drugs and women, and one group, UnFollowCharlie, has asked the public to boycott Mr. Sheen’s Twitter and tour as a stand against misogyny.  The group started selling products bearing the Unfollow Charlie logo through Zazzle, a website that creates custom products from user-submitted designs, and a storm of publicity followed the announcement that the money raised by the sales of these products were to go to RAINN, the Rape Abuse & Incest National Network.

UnFollowCharlie’s fundraising efforts came to an abrupt halt on March 17 when Zazzle had its merchandise removed for violating the site’s user agreement. At first the group thought that the goods were pulled because the bird on its logo was too similar to the one in Twitter’s logo. It turned out that FEA Merchandising, producers of official Charlie Sheen t-shirts, sent the takedown notice because it believes the Unfollow Charlie shirts infringe on Mr. Sheen’s right of publicity. Zazzle’s notice to UnFollowCharlie stated:

Unfortunately, your product was removed because it featured a design that does not meet Zazzle Acceptable Content Guidelines. Specifically, your product contained content that violates Charlie Sheen’s rights of celebrity/publicity. Charlie Sheen’s name and likeness are protected by rights of celebrity/publicity and may not be used on Zazzle products without permission.

That Mr. Sheen felt a keen proprietary interest in his product is no surprise; one week  before the takesown notice was sent he declared “I need to gobble up all these f*ckin’ posers and bootleggers and make them go away. Then we’re gonna deliver the real f*ckin’ t-shirts and mugs and hats.”

When THR Esq. ran this story, Eriq Gardner concluded with a few open-ended questions as to who should prevail in this dispute. LASIS analyzed the situation and came to some conclusions.

The right of publicity protects a celebrity’s right to control how his or her fame is monetized. The extent of this law varies from one state to another as it not incorporated into any federal statute. Because both Zazzle and Mr. Sheen are residents of California, the right of publicity laws of California would govern in this dispute. This law prohibits third parties from using the name, voice, signature, photograph, or likeness in of a celebrity in advertising and merchandising without consent. California’s laws grant its celebrity residents more expansive publicity rights than most states. It is one of the few states that even recognize that this right persists even after a celebrity is deceased.

The Unfollow Charlie shirts feature a drawing of an armored woman bearing a shield and a bird on her shoulder. This image lacks the capacity for speech, so Mr. Sheen’s voice has not been misappropriated. “Charlie” is written in an all-caps block letter font, which does not resemble Mr. Sheen’s illegible signature. The group’s logo is a drawing, so no photos of Mr. Sheen have been incorporated into these goods. And to the best of our knowledge, Mr. Sheen is not the second coming of Joan of Arc, so the woman on the logo is not an unauthorized depiction of Mr. Sheen’s likeness. The only sticking point, then, is whether putting “Charlie” on the design is an illegal use of Mr. Sheen’s name.

Ordinarily, “Charlie” alone would not trigger a publicity rights violation. Charlie could relate to a variety of men without a closely following Sheen surname to anchor it. There is precedent for celebrities to win on these grounds, however, even if just their first names are used. In 1983, Johnny Carson prevailed against a company selling “Here’s Johnny” portable toilets, “The World’s Foremost Commodian.” The court found that the catchphrase “Here’s Johnny!” intoned by Ed MacMahon when introducing the World’s Foremost Comedian on The Tonight Show had been ingrained onto the public’s perception and was part of Mr. Carson’s identity. The defendant admitted that he would not have chosen the phrase for its company and products absent this strong public association. Because Mr. Carson had already licensed his catchphrase for use on a restaurant, men’s toiletries, and men’s clothing, the defendant’s misappropriation infringed Mr. Carson’s right to market his publicity.

But Unfollow Charlie is not a phrase that is intertwined with the public image of Mr. Sheen. The protest group coined the phrase. And because most people would not understand the connection between the group’s name and logo to Mr. Sheen without an explanation, FEA cannot claim that Unfollow Charlie products violate Mr. Sheen’s right to profit from his infamy.

The California statute has an exception for using materials falling within the publicity rights arena without consent if the use is for “any news, public affairs … or any political campaign.” Since Mr. Sheen’s Twitter boom is of recent vintage, a group criticizing this phenomenon could be considered “news.” Furthermore, in opposing the the institutionalized acceptance of violence to women, UnFollowCharlie is also a political group. All of its proceeds support the charitable foundation RAINN.  Political speech has been afforded the highest constitutional protection even when it runs contrary to other rights. So even if UnFollowCharlie’s use did misappropriate Mr. Sheen’s notoriety, it would be exempt from liability because its use is political speech.

To Zazzle’s credit and Mr. Sheen’s tee shirt manufacturer’s embarrassment, the site quickly resolved the dispute in favor of UnFollowCharlie. The group can sell its products as long as “Charlie Sheen” isn’t included in the titles, keywords, or descriptions of those products. Although Mr. Sheen and his licensees may have claims against vendors capitalizing on his likeness, photo, and catchphrases without permission, here the self-proclaimed warlock picked a fight with Goddesses.  When it comes to overstepping his rights, Mr. Sheen is not, in fact, winning.

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