10 Sep
2006

















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     Personality Rights

Martin Schwimmer, the US trademark and domain name lawyer whose blog is one of our favourite destinations, notes what appears to the first attempt in the US to seize a defendant's personality rights rather than the usual house in Malibu, Beamer, private number of Nancy Reagan's astrologer and Enron memorabilia. Personality rights (aka rights of publicity) recognise that the name and likeness of a celebrity has a commercial value.

Publicity rights law varies considerably: there is a range of legislation in the US but no specific statute in Australia (although some protection is provided under passing off provisions of the Trade Practices Act). It typically gives a celebrity, their heirs or a commercial entity that has acquired the rights the authority to restrict uses of that 'personality'.

Such restriction might prevent a use that the individual finds repugnant. It might instead allow the individual to licence particular uses, for example charge a fee for use of the celebrity's name in an advertising campaign.

In 1988 the US Court of Appeals thus awarded Bette Midler US$400,000 damages after an advertising agency for Ford used a lookalike to perform Do You Want To Dance to "sound as much as possible like the Bette Midler record". Earlier this year a Munich court ruled that the Frankfurter Allgemeine Sonntagszeitung should pay Boris Becker ¤1.2m for unauthorised use of his image in promoting the launch of its new edition in 2001.

The new case involves action by Fred Goldman against O J Simpson. Simpson was acquitted after a controversial criminal trial in California over the 1994 murder of former wife Nicole Brown Simpson and Fred Goldman's son Ron. No one has since been arrested for the crime. The Brown and Goldman families sued Simpson in a wrongful death lawsuit, with the jury in civil court proceedings (using a lesser standard of proof than required at a criminal trial) finding him liable in 1997 for the killings.

The families were awarded some US$33 million, which Simpson has not paid. Goldman is now seeking seizure of Simpson's publicity rights, noting that in California those rights are alienable and descendable. (Tennessee for example has enshrined Elvis Preseley's rights 'in perpetuity'.) Seizure is based on the unsatisfied US$25.5 million civil judgment relating to the murder of Ron Goldman.

Goldman commented that Simpson "has never paid a dime on the judgment to anyone. He has made it very clear over the years that he has no intention of doing so". Simpson reportedly gains some money from appearances and autograph signing, so his publicity rights presumably have some value. Simpson's attorney is quoted as stating that there is no precedent for a 'seizure' of publicity rights. From an Australian perspective seizure might be considered consistent with US proceeds of crime law regarding literary rights (aka the 'Son of Sam' law enacted by most states) and 'murderabilia'.

Goldman said that it would be "poetic justice" to use the fame allegedly exploited by Simpson in the criminal case. He is seeking to take "what we perceive is probably the most important thing to him, and that's his ego, and that's the opportunity to use his name and likeness to earn money". He indicated that he does not know how much Simpson's publicity rights might be worth or what he would do with them if he obtained them.

Simpson's lawyer reportedly denied that Simpson had avoided paying the lawsuit award, claiming that "It's not a question of intentionally trying to avoid anything. O.J.'s life is very simply an open book. There is no money". Simpson is a Florida resident. That domicile has enabled him to protect his National Football League pension (upwards of US$0.9m) and home against seizure.

     follow-up

In November 2006 Simpson's publisher, Regan Books, confirmed that he had written a book - apparently to be titled If I Did It, Here's How It Happened - telling "how he would have committed the murders if he were the one responsible". The deal and associated interviews on the Fox television network are reported to involve payment to Simpson of US$3.5 million.

The New York Times reported at that time that

The National Enquirer reported in October that a Simpson book was being planned, but that report was dismissed after Yale Galanter, a Florida lawyer said to be representing Mr Simpson, told The Daily News that it was untrue.

Simpson's publisher commented

I think this confession is a historic part of an event that needed closure. We are all in the publishing business, and our business is to tell stories about what is going on. This is a news event.

Regan's owner News Corporation subsequently withdrew from the deal, with Rupert Murdoch commenting "I and senior management agree with the American public that this was an ill-considered project".

Publisher Judith Regan was then fired, going on to issue a media statement that compared her alleged victimisation with that of Nicole Brown Simpson

The men who lied and cheated and beat me — they were all there in the room. And the people who denied it, they were there, too.

and explaining

I made the decision to publish this book, and to sit face to face with the killer, because I wanted him, and the men who broke my heart and your hearts, to tell the truth, to confess their sins, to do penance and to amend their lives. Amen.

In March 2007 the New York Times reported that a Los Angeles judge had ruled that rights to the book will be publicly auctioned so the Goldman family receives any future proceeds from their sale. If no publisher bids on the book, the Goldmans will "lock it up".

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