May 20, 2004

Arnold Schwarzenegger Bobblehead case

Arnold Schwarzenegger Bobblehead has resulted in a legal action, where Schwarzenegger Files Suit Against Bobblehead Maker (echoed everywhere e.g. Copyfight, Lessig, Dan Gillmor)

The key aspect here seems to be a California "Right Of Publicity" law. I'm not a lawyer, but I think I've come up with a good argument for why Arnold Schwarzenegger is wrong.

The above article gives a case

Montana v. San Jose Mercury News, Inc., 34 Cal.App.4th 790, 40 Cal.Rptr.2d 639 (Ct.App. 1995).

In Montana, the California Court of Appeal affirmed summary judgment against football star Joe Montana's claim that a newspaper's poster reproducing its Super Bowl cover story violated his Section 3344 and common law rights of publicity. Noting that Section 3344(d) does not require consent for use of a "name, voice, signature, photograph, or likeness in connection with any news, public affairs, or sports broadcast or account, or any political campaign," the court held that 1) the posters represented newsworthy events, and 2) a newspaper has a constitutional right to promote itself by reproducing its new stories.

I think that shows how the "public affairs" exemption trumps the publicity right. One could have argued before that Montana still retained right-of-publicity control over a poster made from the event.

Now, a bobblehead doll is a caricature (not really a parody or satire). There's a long tradition of caricatures of political figures. Indeed, looking at the image of the bobble-head doll, it's definitely something that could be imagined as a reproduction of an editorial cartoon. In fact, it's one of the more political images, with the juxtaposition of Arnold Schwarzenegger in a business suit but holding a machine-gun and bullet-belt.

If it could be a newspaper editorial cartoon, and one could sell a poster of that cartoon under the California law, I would say it follows that a sculpture of that political caricature is similarly protected expression.

By Seth Finkelstein | posted in copyblight | on May 20, 2004 11:59 PM (Infothought permalink) | Followups
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It's hard to see a bobble-head doll as an example of "any news, public affairs, or sports broadcast or account, or any political campaign". Now, if the doll were being distributed as part of a political campaign, that would be different. But just to sell them as a novelty item doesn't seem to fit these categories.

Posted by: Cypherpunk at May 21, 2004 05:59 PM

Do you disagree regarding that particular bobble-head doll, with the combination of suit/gun/bullets, is certainly a political caricature?

The _Montana_ case above, about selling a poster, argues the exemption is broad.

Posted by: Seth Finkelstein at May 21, 2004 10:04 PM