Publicity Rights Being Used To Try To Stop Family Members From Talking Publicly About Other Family Members

For years now, we've been writing about the rise of publicity rights as a new(ish) form of intellectual property that was ripe for abusing. These are laws, usually at the state level, which were officially designed to allow famous people to block companies from misappropriating their image in order to suggest an endorsement. You can kind of understand how that type of thing might make sense, though you'd think that certain existing misappropriation and fraud statutes might cover most of the really bad scenarios. However, over time, publicity rights laws have expanded massively, leading to some crazy lawsuits. In the past few weeks, we've seen two specific ones that highlight just how insane publicity rights laws have become.

First up, a pair of siblings sought to stop another sister from writing anything about the death of their mother. Eric Goldman summarizes the situation:
Today’s family feud involves a mom, Lois Reynolds, and her three kids, sisters Sylvia and Robin and brother Doug. Mom died in January 2011. A few months before mom’s death, sister Robin wrote about end-of-life issues and published the article in a (now-defunct?) online publication Phoenix Woman. I thought the article provided fairly straightforward observations about caregiving to the elderly, but siblings Sylvia and Doug were “shocked, hurt and deeply angry” about the article. Sylvia had a lawyer send Robin a demand that Robin:

refrain from making any ‘[p]ublication actually or reasonably perceived to be about or relating to Lois (including without limitation Lois’s name, likeness and description…).’

(Please re-read that demand again. Say what???). Undeterred, on Mother’s Day 2011, Robin “posted a blog tribute to Lois that included a photograph of herself with her mother.” In response, the estate listed, as one of its assets, a legal claim against Robin for violations of mom’s publicity rights, which Robin challenged in the estate proceedings.

Yikes! The second case involves someone famous... but that's not who's arguing for publicity rights to protect himself. Actor Jason Patric is involved in an apparently bitter custody battle over his son. His ex-girlfriend sought to use California's publicity rights law to stop Patric from using his son's name in the name of an organization he set up to "raise awareness of parental alienation." Patric, rightly, points out that he should be able to actually use his own son's name and it would be ridiculous for the law to block that.

Thankfully, on both of these cases, the efforts at using publicity rights for the sake of censorship have failed. The court in Arizona (which doesn't have an explicit publicity rights statute, but recognizes common law publicity rights) noted that publicity rights cannot restrict the use of someone's identity "in news reporting, commentary, entertainment, works of fiction or nonfiction" and thus decided that it is perfectly fine for Robin to write about her mother. In Patric's case, a judge noted that blocking Patric from using the name of his son would represent unlawful prior restraint and violate the First Amendment.

It's good to see that both of these attempts failed. But just the fact that we've seen a couple of these cases means it's likely that we'll be seeing many more -- and sooner or later some may actually succeed. Or, worse, people will start to lobby to adjust publicity rights laws in a manner to expand them to cover this sort of behavior. It's good that these two attempts have failed, but it shows where people go once you start to give them the power to censor others with new forms of "intellectual property."

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