This comes up pretty frequently about famous celebrities, particularly musicians. There was the famous non-Kurt Cobain biopic, where legal fears mean a Gus van Sant’s film ended up being about the last days of a generic Kurt Cobain type person. More recently a Billy Joel biopic was greenlit that wasn’t allowed to use his " his music, name, and likeness."
While someones music and other creative works are covered by copyright, so that part doesn’t seem too controversial, surely if the 1st Amendment doesn’t protect your right to use a famous public figures name and likeness in order to publish factual descriptions of things they did, what does it do? I mean how would this not allow Trump or (as it also covers dead stars) Hitler or Stalin’s relatives to stop films about them because they control their “name and likeness”?
I have the same question for the NFL not allowing commentary on the superbowl. How is someone reporting on factual things that happened on a football pitch not protected by free speech? Again couldn’t a political party claim the same rights about reporting on their convention when some neo-nazi gives a hate speech?
The NFL has no ability to allow or disallow commentary about the Super Bowl, so I’m not sure what you think this adds to the question. They can control whether people can use the term Super Bowl in commercial activity, but not in commentary or news reporting.
Every piece of official Superbowl publicity or clip ends with a statement “Any other use of this telecast or any pictures, descriptions, or accounts of the game without the NFL’s consent is prohibited,” Its a bit of sidetrack as it seems to be somewhat of wishful thinking by the NFL, rather than the “name or likeness” thing which is apparently settled law that has been enforced?
Well. there’s no first amendment issue here because it’s not the government saying “no you can’t make a movie about Billy Joel.” And despite Joel not giving his blessing, that doesn’t necessarily mean they can’t call the character “Billy Joel.” The same thing happened with Stardust but the main character is still called David Bowie.
It is though. Its not like they are not using his likeness or name because the are worried Billy Joel will be mad at them and they will get bad publicity. They are worried he’ll take them to court and the court system will use the threat of government force to take their money.
Yeah, it’s deliberate overreach as your article notes. There’s a ‘Fair Use’ doctrine at play but it doesn’t hurt the NFL to assert it. There have been attempts to make it outright illegal to do so but those haven’t gone far.
Its enforcing a law, written by the government, with the threat of government violence in the form of the courts. It is absolutely covered by the first amendment. If that was not the case the government could pass a law making it possible to sue anyone who criticizes the president for millions of dollars. That is just the courts being the arbiter between private individuals, no 1st Amendment issues, what do you mean?
I imagine that the legal fears were of the defamation variety that might be lodged by Courtney Love. In that sort of biopic, Love being successful would be unlikely, but a protracted lawsuit could prove extremely costly.
As you’ve surmised, there is no controversy over being unable to use Joel’s music without permission, but his name and likeness are also protected. Who would win in that sort of legal tussle is for a court to decide, but it would be expensive either way.
As others have pointed out, it’s not a 1st Amendment issue.
I have no doubt that the NFL would very much like to control all uses of the term Super Bowl and its variants. But they cannot. Commentary is fine, and there’s nothing that the NFL can do about it. What is prohibited is using the term to advertise outside events (but even then, other laws come into play that could limit the NFL’s prohibitions) and overly descriptive accounts of the game, especially video excerpts.
The NFL used to be very zealous in its assertion of its rights, but over the past few years, it seems to have mellowed some.
The concept is sometimes referred to as the “right to publicity” and has been around for a long time. In short it means that someone can’t use a) your name or likeness b) for commercial purposes c) without your consent.
The first paragraph and the second paragraph of the OP aren’t talking about the same thing. A biopic about Billy Joel or Kurt Cobain are not “factual descriptions” of them. They are “artistic” works, not documentaries.
At its very basic level it means that a soup company can’t use your or Billy Joel’s, or for that matter Donald Trump’s name or image to advertise soup without their permission. Paul Newman could sell salad dressing named after him and with his picture on the bottle. I couldn’t, not without his permission.
And it really doesn’t have much to do with the First Amendment. The First Amendment is about the power of the government to restrict what you say. The government can’t order you to say that you like or don’t like soup.
The Super Bowl is a private event, held for commercial purposes, and owned by an individual entity (the NFL) If they wanted to hold it in private and not let spectators in to watch it, or the media in to cover it, they have every right to do so.
That’s not the case as defamation does not cover deceased people.
And as I pointed out that is 100% not the case. Whether or not, this particular thing is a 1st Amendment violation, its the government taking all your money with the threat of violence because you lost a civil court case is totally a government sanction that could potentially violate the 1st Amendment.
Well, the First Amendment is a law written by the government, so just think how deep this goes!
You can already sue somebody for criticizing the president. You probably won’t win, but there’s already “a law” that allows that. If the government passed a law saying you can’t criticize the president, now we’re talking about a First Amendment issue.
A lawsuit about whether someone has misappropriated somebody else’s image for profit is only a First Amendment issue in that, generally speaking, “people are allowed to say what they want” is the default because of the right to free expression. Laws about copyright violations, name and likeness, defamation, etc. are exceptions to that general rule.
Another way of looking at it is: do you think all copyright and trademark and name and likeness law is a First Amendment violation?
True, but artistic works are 100% absolutely covered by the 1st Amendment. The government can’t ban you from making a fictional film whose point is to be critical of the government any more than they can ban you from making a critical documentary about the government.
Yeah but if congress passed a law explicitly saying “Anyone can sue anyone they witness being critical of the government for 100M dollars per occurrence” it would be absolutely be struck down in 10 seconds flat as a 1st amendment violation,
The idea that what the government enforces in a civil court cannot be 1st amendment violation is fundamentally wrong.
Vice, Downfall and Death of Stalin were not charity endeavors, they were attempts to make money using real people’s likeness that also had political aspects. How does the same law that stops people using Billy Joel and Kurt Cobain’s likeness without being sued out of existence not allow apply to Dick Cheney, Adolf Hitler, or Joseph Stalin? Or Volodymyr Zelenskyy for that matter, he had a long career in show biz before getting into politics.
Oh, I see. Yeah, I think the answer to your question is just the “stops people” part. It doesn’t act as an actual legal barrier preventing the making of the film. It just means people won’t try.
You could absolutely make a movie factually representing events in the life of a famous person, and if you were sued based on some state right to publicity law, you could make a First Amendment argument. I think the issue is that these studios largely just don’t, because they’re trying to make money. Like so many things, the threat of the lawsuit itself is the bar, not the underlying legal merits. A Billy Joel movie is intended to make a bunch of money for someone, not educate people about the historical facts of Billy Joel.
His “image” is the problem that’s not a creative work of his. That is a conceptual thing that is absolutely part of protected speech. Me depicting how Billy Joel was inspired to write Piano Man (including his facial expressions, what he said to his wife about it, etc. etc.), just as much protected speech as depicting how Dick Cheney (including his facial expressions, what he said to his wife about it, etc. etc.) was inspired to invade Iraq war.