Skating Over Legal Terminology

By Asher Hawkins

Dressing up in spandex and sequins. Strapping on a pair of ice skates. Performing a carefully choreographed routine to the smooth-jazz stylings of Kenny G. Sound embarrassing?

For a professional figure skater, that’s just another day at the office. In fact, the pro-skater would probably object if it were suggested that she had agreed to engage in such a performance, but then pulled a no-show at the last minute. A couple of stunts like that, and suddenly you’re the LiLo of the skating-show world.

Earlier this month, Ukraine-born former Olympian Oksana Baiul sued NBC and a skating-show production company whose events apparently are regularly broadcast by the network, in state court in Manhattan, alleging that her name and likeness were used in promotional campaigns for a pair of recent skate shows, even though she had never officially signed on as a performer for the events.

Reports about Ms. Baiul’s suit by the Associated Press, New York Daily News, The Hollywood Reporter, Variety and others described the gist of her allegations, and readers would be forgiven for thinking, after reading these accounts, that Ms. Baiul’s claims primarily involve contract or defamation law.

As it happens, the key doctrine on which her complaint actually relies is a legal concept commonly (and sometimes inaccurately) referred to as “right of publicity.”

Some background:

Do you even remember Ms. Baiul? At the age of 16, she overcame injury during the 1994 Winter Olympics in Lillehammer to beat out American sweetheart Nancy Kerrigan for the gold. Her unfortunate hairstyle and outfit choices may have made Tonya Harding look like a fashion icon by comparison, but oh, how she could lutz!

Ms. Baiul’s post-Olympic career has had its ups and downs; in the late 1990s, national media regularly reported on her apparent struggles with alcohol abuse. Still, she continues to perform in skating shows.

According to her lawsuit, in mid-2011 skating-show production company Disson Skating contacted an agent with whom she was affiliated and offered to pay Ms. Baiul to star in two upcoming shows. The first show was to take place in December 2011 in Greenville, S.C., and feature the progressive-rock band Styx (of “Mr. Roboto” fame.) The show with Kenny G was to take place in January 2012 in the saxophonist’s hometown of Seattle. Ms. Baiul claims that although she never signed a contract with the production company – and ultimately turned down the offer – the shows’ organizers launched a print-and-radio marketing campaign that included Ms. Baiul’s name and likeness and suggested that she would be appearing in the shows. Because that didn’t happen, and because the defendants never issued a correcting press release, Ms. Baiul was left looking like a two-time no-show, and suffered irreparable damage to her reputation, her lawsuit contends.

If a tree falls in the forest and nobody is around to hear it, does it make a sound? If something disparaging is said about a Z-list celebrity, has any harm been done?

What is today colloquially referred to as the “right of publicity” often encompasses what is more properly termed the “right of privacy”.

In order to understand the legal argument that Ms. Baiul’s attorney is making on her behalf, it’s important to grasp the historical distinction between these two concepts.

American courts generally regard the “right of publicity” as enabling those who engage in public performances – whether they be human cannonballs or strippers or baseball players or civil-rights orators – to prevent commercial entities from making money by using these public figures’ names or likenesses, without their permission, as the key feature of either an ad campaign or a product itself. (Note that this protective power would not give celebrities a legal right to demand a pay-out from, for example, a magazine that regularly publishes articles about them.)

When analyzing whether a right of publicity has been infringed, the question judges ask is not how famous a person is, or whether he or she is controversial or widely revered; those inquiries are relevant to the value of the person’s right of publicity, not its existence. If a person has engaged in a professional pursuit that brings him into the public eye, an enforceable right of publicity exists if he could arguably make a profit by publicly performing those skills on demand. How great or little that profit might be is of no consequence.

In this sense, the right of publicity is a form of intellectual property. (Any good IP law textbook will include a chapter on right of publicity.) Like patents and copyrights, the right of publicity allows people to monetize the fruits of their creative labors. As one federal judge, ruling on a case filed by boxing legend Muhammad Ali over an unauthorized portrait, noted in a 1978 ruling, a celebrity’s right of publicity is comparable to a corporation’s goodwill.

Not surprisingly, the growth of right-of-publicity law has tracked that of modern America’s celebrity culture; the most prominent enunciation of the concept was in 1953, by the New York-based federal appellate court, in a case involving ballplayers’ exclusively contracting with particular chewing-gum manufacturers over commercial use of their photographs.

But what about us non-celebrities? Do we have no means of preventing unauthorized commercial use of our likenesses? Let’s say you’re really really really ridiculously good-looking, without even trying – don’t spend any time worrying about your appearance, never go to the gym, etc. – and you’ve had hundreds of offers to work as a model, but you’re just not interested. Then one day you’re walking down the street in a pair of designer jeans, and a photographer snaps of a shot of you doing so, and sends it to the designer, who uses it in an ad campaign that sees sales of the jeans quadruple. Does the law provide you with no means of stopping the campaign – or at least demanding a reasonable cut of the resulting revenue?

Here is where “right of privacy” kicks in. This legal concept actually predates the emergence of the celebrity-centric right of publicity, and recognition of the right of privacy was championed in a landmark 1890 law review article by two late-19th Century legal titans who were apparently concerned about how a new-fangled thing known as a camera would impact what they regarded as a fundamental human right: “to be let alone.”

U.S. courts were reluctant to recognize the right of privacy. In 1902, New York’s highest appeals court ruled against a young woman who’d complained that her likeness had been used without her permission in a print ad promoting a certain brand of flour. The Empire State’s legislature wasn’t pleased with that result: The following year, it passed a right-of-privacy law whose current version is found in New York’s civil-rights code. This statute, which makes it unlawful to use someone’s name, likeness or voice for purely commercial purposes without their written permission, is the one that Ms. Baiul’s complaint primarily relies upon.

It’s hard to gauge how strong a case Ms. Baiul has without knowing more about the underlying facts beyond those set forth in her complaint, but here’s one thing about the way New York courts interpret the state’s right-of-privacy law that sometimes catches plaintiffs off-guard: If an agent to the plaintiff provided some form of written permission without the plaintiff’s knowledge, that authorization may be binding. (One New York male model learned this lesson the hard way when he tried to sue Nintendo for allegedly unauthorized usages of his likeness on video-game packages.)

While federal trademark law can sometimes afford protection to plaintiffs like Ms. Baiul (and her lawyer does cite the relevant federal-law provision in the complaint), the strongest protections for unauthorized-use-of-name/likeness/voice plaintiffs tend to be found in state laws. In some states, the law is codified, as is the case with New York’s right-of-privacy law; in others, it stems from judge-made “common law”, which means that it derives from multiple prior legal opinions, as opposed to a single statute enacted by legislators. When the elements of a legal cause of action have been firmly set forth in a single writing, lawyers tend to have less wiggle room to appeal to judges’ notions of justice and equity and all that jazz.

One final thing to keep in mind about the rights of publicity and privacy: Though nowadays they are regarded as one and the same – or at least as flip sides of one coin – in some instances, a conceptual distinction is made.

In New York, for example, any person – public figure or not – can file a lawsuit under what is technically a right-of-privacy statute (but which even media-law experts label a “right of publicity” law.) California, like a number of other states, has a similar law on the books, but a Golden State law passed in 1985 affords the ability to posthumously protect the value of the name/likeness/voice of not just any regular citizen, but only of a “deceased personality” – a term of art that is limited to “any natural person whose [name/likeness/voice] has commercial value at the time of his or her death…”

Though the revenue stream may today be more a trickle than a waterfall, even in California Ms. Baiul could argue that she’s been wronged.


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