the only politician protected by IP

Posted on May 18, 2004 by Lessig

So according to the governor, you can’t make a parody doll of him. His rights of publicity trump any public right to parody. Amazing.

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16 Responses to the only politician protected by IP

  1. Dave Kearns says:
    May 18, 2004 at 1:55 pm

    Could someone explain how an Anna Nicole Smith (or Jesus Christ) doll is a “political parody”?

    This things don’t appear to be within the meaning of the old fair use doctrine, nevermind the current DMCA one.

  2. Anonymous says:
    May 18, 2004 at 2:08 pm

    The article never said they were. Here’s the pertinent text:

    "Ohio Discount Merchandise Inc., a family-owned business in Canton, came out earlier this year with a line of dolls of political figures, including Senator John Kerry of Massachusetts, former Gov. Howard Dean of Vermont, Gen. Wesley K. Clark and Representative Tom DeLay of Texas. The company has long sold bobbleheads of public figures and celebrities. Its two biggest sellers are likenesses of Anna Nicole Smith and Jesus Christ."

    Jesus and Anna Nicole are in the "public figures and celebrities" category. You probably have the same habit as I do: glancing at a sentence or paragraph and guessing its meaning without truly reading it…

  3. Casey McG. says:
    May 18, 2004 at 2:40 pm

    so California residents automatically lose their statutory publicity rights (CCP 990) simply by virtue of being elected to public office?

    i think this matter is rightly subject to reasonable debate and am optimistic a california court can determine if the bobble head is fair use or not in light of the competing considerations noted by the Cal. Supremes in the Comedy III Productions case (2001):

    Depictions of celebrities amounting to little more than the appropriation of the celebrity’s economic value are not protected expression under the First Amendment. . . . [But the r]ight of publicity cannot, consistent with the First Amendment, be a right to control the celebrity’s image by censoring disagreeable portrayals; once the celebrity thrusts himself or herself forward into the limelight, the First Amendment dictates that the right to comment on, parody, lampoon, and make other expressive uses of the celebrity image must be given broad scope.

  4. Zeldo The Magnificent says:
    May 18, 2004 at 3:05 pm

    It’s time to get this commie eurotrash ****sucker off the public dole and send him to jail.

    NOW!

    Zeldo.

  5. romain says:
    May 19, 2004 at 5:26 am

    Next step is :

    “No, don’t look at me, my image just belongs to me !
    No, don’t even listen to me, that’s my voice, you theft !
    Noooooo, don’t you talk to me, you’re making illegal use of my ears, and of the air surrounding me, which is mine too !
    Noooooo… go away.

    Hu. Wait, before leaving, you may purchase a clone of me, if you like. Daily subscription, and biometric DRM. Deal ?”

  6. mythago says:
    May 19, 2004 at 11:05 am

    You can parody the Governator all you like. “Parody” is not a big umbrella under which to hide profit-making activities.

  7. Mike says:
    May 19, 2004 at 11:42 am

    The pols aren’t refraining from the courts because the thief is right, they are refraining because they fear defending their rights in court would put them in a bad light.

    I don’t think a bobblehead doll of Kerry is parody, unless for example it somehow depicted him throwing away a medal, which would be clearly creative because bobbleheads are usually just standing there 🙂 . The Arnold doll was more like an action figure, with the bandolier. And why shouldn’t a politician have some limited monopoly on exploitation of their own image in order to raise money? I can picture a world where that is the only way they can raise money, but I digress.

    Recognition of privacy rights for public and private people could use a little expansion.

  8. Evan Nemerson says:
    May 19, 2004 at 12:18 pm

    I don’t know about you, but I’d be slightly more upset about a voodoo doll than a bobble head doll… Though IMHO both should be acceptable.

  9. Anonymous says:
    May 20, 2004 at 8:23 am

    Let’s see here. Drape Arnold with a bandolier, and have him holding a machine gun. Now where have I seen that before? Hmmm.

    It wasn’t parody, it was clearly exploitative of the image developed by the characters he has portrayed in movies.

    Put George W in a service uniform, and then you will have a parody.

  11. Seth Finkelstein says:
    May 20, 2004 at 3:07 pm

    I think the right word is “caricature” – not “satire” or “parody”.

    It’s a caricature doll.

    Caricature of political figures certainly has a long protected history.

  12. OldMacFan says:
    May 20, 2004 at 11:19 pm

    So then for some of you the difference would be a commercial parody vs a non-commercial parody?

    So then with a non-commercial parody if say CNN where to run a pic of my non-commercial parody, would then CNN be liable for the same offense for commercially profiting from said parody?

  13. Branko Collin says:
    May 21, 2004 at 4:31 pm

    If the government tells you not to say something, isn’t that called censorship? What’s the difference between governor Schwarzenegger saying ‘you cannot sell this doll’ and him saying ‘you cannot print this book’?

  14. Zeldo The Magnificent says:
    May 22, 2004 at 6:31 pm

    I didn’t mean Schwarzenegger, I meant Lessig.

    Democracy NOW!

    Zeldo.

  15. Zeldo The Magnificent says:
    May 22, 2004 at 6:36 pm

    Branko — you remind me of that old SNL skit with Jagger and Richards:

    “Ahhh, Mick. Without laws, there’d be bloody ANARCHY!”

    You can’t get no satisfaction, and neither can Lessig, because he’s a commie. He should expatriate himself to North Korea.

    Zeldo.

  16. OldMacFan says:
    May 23, 2004 at 9:28 pm

    Zeldo get a clue.

    Sorry, please get a clue.

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