Entertainment Law Question #2?

Question

I have created this hypothetical situation, in which there may be more than one answer. What do you think the answer is?


Suppose that a television set manufacturer wanted to use a photograph of Charles Van Doren in national magazine ads for its products with a caption that said, "You watched him on our TV sets in the 1950's. You're watching today's heroes on our TV sets now. Fifty years from now, you'll still be watching our sets. Quality: Yesterday, Today, and Tomorrow."

Could the manufacturer do so without Van Doren';s consent, or would his consent be necessary? Why?

Here is what I think. Earl, you've really helped me decide which way I would go!!!

The manufacturer could not use Van Doren’s picture on his national magazine advertisement without first obtaining Van Doren’s consent and, most likely, paying Van Doren to use his image. Van Doren’s consent is necessary because the manufacturer would be using his likeness to sell a product, in this case, televisions. It is illegal to identify any prominent recent figure with any product for commercial gain without first negotiating rights with the public figure being used in the advertisement.

If the public figure were deceased, permission would need to be obtained from the family members of the public figure or from whomever holds his or her rights. In this case, our public figure is still alive, so consent would need to be obtained from Van Doren himself to use his likeness in the television ad campaign.

Answer 1

The precedent has already been set. You can't use the Marx Brothers commercially without negociating rights with the family, same applies to Charlie Chaplin. Say, for example, you want to use clips from a Public Domain Chaplin film to advertise a product. It's a no-no. Court cases have been decided on it.

The exception to the rule was established for Pop Artist Andy Warhol, who was allowed to embelish promotional pictures of celbrities and even copyright them as new works and market them commercially where the new material is so significant it becomes a new work and his work.

You cannot, however, identify any promient recent figure with any product for commercial gain. You can use historical figures. George Washington, Isaac Newton, Galileo.

Laws are complex. You can duplicate a Chaplin Sennett film and sell it commercially. You can even post a PD picture of Chaplin in an ad if it's associated with the film. But you can't use that picture to sell Ice Cream without getting the Chaplin Estate permission.

The law I am watching closely is the Star Trek case. Star Trek come out in 1966 during the period of time in which the US copyright laws were being revised. Under the old rules failure to post a notice of copyright lost your rights forever. The US wasn't a party to the Berne convention. You had to pay a fee and sumbit an application and 2 copies of the film with a copyright notice prominently posted within a period of time. Failure to be listed in the copyright book automatically gave people the right to claim "innocent infrignment."

Desilu was in the process of negociating sales to PAramount.

Desilu, Norway Corp and NBC all dropped the ball and failed to post a copyright notice on about 12 episodes of Star Trek.

Gene Roddenberry also struck legal 16mm copies and bicylced them around the world at conventions.

Since there was no posted copyright notices, film labs handling the prints could legally strike copies and make these avaiable.

In the 1980s Paramount successfully mounted a challenge to get a copyright on VHS and later DVD issues of Star Trek, claiming this was the first official sale and that the TV shows were not published but syndicated, a form of limited distribution allowed by the copyright law.

Under the new copyright law enacted by Sonny Bono and others, it was now possible on a case by case basis for some companies to file for retoractive copyrights in instances where loopholes existed. This is how It's A Wonderful Life fell back into copyright.

During WW2 there were exemptions to the copyright laws. Disney cartoons, Waner Cartoons used for the War Effort were not copyrightable, now they are.

Films imported from Berne Countries where no notice was required, such as The Seven Samuri or The Third Man could now make case by case applications for copyright considearation.

Record companies could also make case by case applications for sound recordings, such as is the case with Beatles albums or the sound track to 2001 A Space Oddyssy which is mostly PD music done in an era when US copyrights were not allowed on sound recordings.

Paramount Pictures has NEVER gone after any collector or distributor of 16mm prints of Star Trek epidoes -- and with good reason it would open a nasty Pandoras box that could end up in the Supreme Court, as Budget Films once took "Pygmalion" all the way to the Federal Applette courts where they LOST based on pre-existing copyright source materials (the book and play by George Bernard Shaw, which was legally copyrights in the US).

Now, of course, Pygmalion falls short of the new law as it was written in 1912 and under the Bono Law the cut off is 1923, so the movie Pygmailion is now PD in the US. Budget Films considered goiong to the Supreme Court but didn't.

Any collector with a legitimate Star Trek copy without the notice has BASIC rights under the OLD laws and could prevail in the Supreme Court.

No one, however, is foolish enough to strike VHS or DVD copies of those episodes because Paramount has exclusive rights to market VHS and DVDs on all episodes with fresh copyrights made in the 1980s.

It is still, however, a case in copyright law I find interesting and follow if I see any new events occurring.

To this day you can still buy prints of some of the best episodes in 16mm and you can screen them so long as you don't use the music, which is in copyright and could get you in trouble under the precendent set by Northern Songs Vs Budget, Em Gee and others over Magicial Mystery Tour, which claimed pre-existing rights to the songs and said there was no synchronization license.

That case was also interesting but no one had the guts to take it to the Supreme Court, where it might have won, as the producer must obtain the sync rights and the Beatles were the producers.

Now, however, Apple has probably filed applications to have a retro-US copyright on this film issued and it probably will be issued and dated around 1968 and it would fall under the Bono law making it in copyright until 2063.

Answer 2

Van Doren's consent would not be necessary. However, the magazine's consent would be. Those pics are considered the property of the magazine in question, not Van Doren's.

Answer 3

If you do not brain the price then sure you'll. It will also be handy will have to you run right into a case in which each you & whoever your in confrontation with occur to have retained the identical organization. You'd have any one else to fall again on as a way to no longer danger a clash of curiosity.

Answer 4

In order to show his image in a national ad campaign you would have to have his legal consent to use his likeness. Imagine if Calvin Klein ran an ad with Oj Simpson wearing his clothes that said Calvin's dressed to kill since 1995. Without them paying OJ they would find themselve liable for damages.

Answer 5

You would probably need to get a release to use his picture. His name is the answer to trivia questions, as well as a matter of public record from his appearance in the various courts, so his name would probably be ok to use.

Answer 6

His consent would be necessary. Using someone's likeliness while they are alive requires their consent.