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“And I Think I Love You” . . . Or Not: Shirley Jones and The Right of Publicity

Shirley Jones, star of my childhood fav, “The Partridge Family,” has lost again.

Ms. Jones had sued the photo-licensing company, Corbis, for violating her right of publicity after Corbis displayed images of the long-ago-once-upon-a-time ingénue on its website.

As a refresher, the right of publicity has been defined as the inherent right of every human being to control the commercial use of his or her identity. It is a state-law created intellectual property right whose infringement is a commercial tort of unfair competition. The right of publicity is not merely a legal right of the “celebrity,” but is a right inherent to everyone to control the commercial use of identity and persona and recover in court damages and the commercial value of an unpermitted taking. J. THOMAS MCCARTHY, RIGHTS OF PUBLICITY AND PRIVACY § 1.3 (2011).

In Ms. Jones’ case, the trial court found that she had consented to having her photo taken (walking the red carpet), and thus reasoned that “No reasonable jury could find that defendant’s display for this purpose was not consensual.” The Court suggested opined that any contrary holding “would require that individual photographers themselves market their photos or obtain express consent from each subject prior to utilizing a third-party distributor to market their red carpet photos.”

Part of the problem with Ms. Jones’ case was that she did not dispute having consented to being photographed; she even acknowledged her understanding that the shutter flies would sell the pix they took.

In light of this, the Court reasoned that “Defendant merely maintains a modern-day version of the catalogs of sample images that would be hand-delivered to potential buyers in the past,” thus concluding that the photographs Corbis displayed on its site were used only to advertise a license to those very images.

Well isn’t that exactly what Cal. Civ. Code Section 3344 (our right of publicity statute) prohibits? It provides, in pertinent part, “[a]ny person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof.” CAL. CIV. CODE § 3344(a)

Perhaps this is why Jones appealed. Unfortunately for her, however, the Court of Appeals agreed with the district court. It ruled the district court had not erred in concluding that Corbis did not violate Ms. Jones’s right of publicity.

And I suppose this does make sense, if she consented to the photo-taking. Though the protection and cause of action vary from state to state, it’s generally accepted that a plaintiff must plead and prove, among other things, that a lack of consent. That is that the defendant, without permission, used some aspect of identity or persona (which is likely to cause damage to the commercial value of that persona). MCCARTHY, supra, § 3.2 (2011); see also, Laws v. Sony Music Entertainment, Inc., 448 F.3d 1134. 1138 (9th Cir. 2006) (To sustain a claim for protection of voice, name, and likeness under California’s common law right of privacy, a plaintiff must prove: (1) the defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury).

And this is pretty much what the 9th Circuit concluded. It expressly noted that “For both California common law commercial misappropriation claims and claims under California Civil Code § 3344, the plaintiff must prove that the defendant appropriated his or her likeness without consent.” (Citing Downing v. Abercrombie & Fitch, 265 F.3d 994, 1001 (9th Cir. 2001).) As the court pointed out, that consent “may be implicit and is to be determined objectively from the perspective of a reasonable person.” (Citing See Newton v. Thomason, 22 F.3d 1455, 1461 (9th Cir. 1994); Virgil v. Time, Inc., 527 F.2d 1122, 1127 (9th Cir. 1975); Restatement (Second) of Torts § 892 cmt. c (1979).)

So therein lies the rub: was it reasonable for Jones to expect her photos to show up on a site like Corbis, or wasn’t it? (And why is the song “And I Think Love You” running through my head right now? And how do I get it to stop?)

The Court of Appeals noted that the lower court had found Ms. Shirley admitted she intended for the photographs at issue to be distributed to media outlets, that she was not surprised the photographers would use a third party distributor, and that she had not placed limits on how the photographs of her could be distributed.

In light of this, the Court found that she had consented to Corbis’ placement of sample photographs of her on its website for the purpose of selling copyright licenses to those images.

Notably, Corbis attempted to argue that the Copyright Act preempted Jones’ claim. Section 303 of the Copyright Act preempts claims that equivalent to those addressed by copyright law. To this end, Corbis argued that Jones’ claims “would upend the copyright scheme carefully laid out in the Copyright Act by giving [Jones], as opposed to the copyright holders, the right to control the display and distribution of the copyrighted works, application of conflict preemption to bar plaintiff’s claims is appropriate.”

That’s a nice, creative argument. By to quote one of my favorite former partners (talking about you, Dave), “No dice!” The Court of Appeals summarily brushed aside that argument (as well it should have).

Finally, the Court ruled that the district court had not abused its discretion in awarding Corbis its attorneys fees. Ouch.

Now quick: other than Shirley Jones and David Cassidy, who else starred in The Partridge Family? (A: Dave Madden and Susan Dey. Bottom: Danny Bonaduce, Suzanne Crough, Brian Forster. And yes, I used Wikipedia for that one.)

Jonathan Pink is an intellectual property and entertainment attorney at Bryan Cave, LLP. He is a versatile trial lawyer specializing in commercial, copyright and other intellectual property disputes in the entertainment, media and fine art industries. He has successfully represented major musical artists, actors, performers, writers, producers and visual artists in contract, fraud, copyright, trademark, right of publicity, unfair competition actions in federal and state courts.

Jonathan Pink is a business lawyer with a specialty in copyright, patent and trademark litigation. His clients include many of the biggest names in the automotive and motorcycle aftermarket parts industries, and one of world's largest media companies. He has extensive experience in a wide range of intellectual property and commercial disputes including breach of contract, fraud, and the misappropriation of trade secrets. He can be reached at 949.223.7173, or at jonathan.pink@bryancave.com, and his full profile can be viewed at www.bryancave.com.

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