Maurer: No owning history — the First Amendment and creative freedom

Maurer

By Brad R. Maurer

A colleague recently recalled his memories of a string of events, well known to some, that started with a hostage-taking in February 1977 and ended with a not guilty by reason of insanity verdict. He had been asked to share his recollection of those events as part of a new documentary and, only being 3 years old at the time the events took place, I was fascinated by the story of Anthony G. Kiritsis. Briefly, Kiritsis took a mortgage executive, at shotgun point, on a very public 63-hour hostage odyssey in response to what Kiritsis viewed as a wrongful plot to foreclose on real estate financed through a company owned by the executive’s family. Of interest to me was the widespread notoriety Kiritsis garnered at the time, and still maintained so many years later, among those who watched and listened to the underlying events on live radio and television. Based on that notoriety and the development of Indiana law since 1977, might the producers now be obligated to pay Kiritsis (or more accurately his estate) to secure approval of the contents or consent to use his name, image and likeness? And, on a broader level, what consent might have to be secured, and price be paid, by producers interested in creating similar content related to more well-known Hoosiers such as Michael Jackson, Bobby Knight or Vivica A. Fox?

Indiana’s statutory right of publicity

Although not known as a celebrity-centric state, Indiana interestingly has one of the most celebrity-friendly right of publicity statutes in the country (I.C. 32-36-1-1 et seq.). The statute generally prohibits the use of an aspect of a personality’s right of publicity for a commercial purpose “during the personality’s lifetime or for one hundred (100) years after the date of the personality’s death”. (I.C. 32-36-1-8). As a remedy, the statue allows a prevailing plaintiff to recover its actual damages, a defendant’s profits, and attorney fees. (I.C. 32-36-1-10 through 12).

From a content creator’s point of view, Indiana’s right of publicity statute thankfully does not apply to “Literary works, theatrical works, musical compositions, film, radio, or television programs,” “Material that has political or newsworthy value,” or “An advertisement or commercial announcement for a use described in this subdivision”. (I.C. 32-36-1-1(A, B and E)). Based on these exceptions, the Kiritsis documentary (and its associated advertising) and similar creative content is not actionable under Indiana’s right of publicity statute. However, a content creator in Indiana may not be safe in limiting its consideration of potential legal challenges to Indiana’s right of publicity statute and Indiana law in general. And, not all right of publicity statutes are as mindful of the First Amendment when it comes to expressly protecting certain permissible uses of individuals and events.

Recent guidance from celebrity-rich California

On March 26, the California Court of Appeals — an influential court with respect to celebrity-related issues such as the right of publicity — issued an opinion in the case Olivia de Havilland v. FX Networks, LLC. In that case, actress Olivia de Havilland filed suit against FX Networks based on a depiction of her in 17 minutes of a 392-minute, commercially successful eight-episode docudrama named “Feud,” about the relationship between Bette Davis and Joan Crawford. De Havilland raised several claims including alleged violation of the common law privacy tort of misappropriation as well as California’s statutory right of publicity. In support of her significant damage demand, de Havilland submitted expert testimony purporting to calculate the fair market value of FX’s “use” of de Havilland’s “rights” in “Feud” to be between $1.38 million and $2.1 million dollars, or between approximately $84,000 and $127,000 per minute of time. She also submitted declarations from experienced entertainment executives that the “standard practice” in the film and television industry is to obtain consent from any “well-known living person” before her or his “name, identity, character[,] or image” can be used in a film or television program.

The trial court denied FX Networks’ early motion to strike the complaint under California’s anti-SLAPP law. Reversing the trial court’s decision, the California Court of Appeals held that the docudrama “Feud” “is speech that is fully protected by the First Amendment” regardless of whether Feud was a commercial success or that it mixed fact with fiction. Further, the Court critically observed that while content producers may enter agreements with individuals portrayed in works for any number of reasons, including a desire to avoid litigation, “the First Amendment simply does not require such acquisition agreements.” The Court also found that the use of de Havilland’s name and photographs of the actress who portrayed de Havilland in social media promotion for Feud was protected under the First Amendment as truthful use of a public figure’s name and likeness in advertising that is merely an adjunct of and promotes only the protected publication. The Court further rejected de Havilland’s “novel” argument that whenever a filmmaker includes a character based on a real person, such inclusion implies an “endorsement” of the film or program by that real person. The net result of the Court’s holding was to cut off at the knees the alleged “use” value of “rights” that de Havilland, and presumably other celebrities, as a matter of standard practice routinely assert must be secured often at significant expense.

Back home again In Indiana

The reality for many Hoosiers aspiring to create content related to the facts and stories of individuals or events — such as the Kiritsis story — is that the costs of multi-jurisdictional legal diligence and the potential threat of a lawsuit (even if without merit) can give others the practical ability to control, dictate, approve, disapprove, or veto a creator’s portrayal of actual people and events. For this reason, cases such as Olivia de Havilland v. FX Networks, LLC are invaluable reminders that the First Amendment remains a foundational bulwark against varied and sometimes overreaching state laws which, in this instance, can help stem and roll back any future assertions that the use of another’s name, image and likeness always requires consent and in some cases significant expense. As reaffirmed by the de Havilland Court, “Whether a person portrayed in one of these expressive works is a world-renowned film star — ‘a living legend’ — or a person no one knows, she or he does not own history.”

As one who has been reminded of how much there is to learn about Indiana history, my hope is that cases like de Havilland further empower Indiana content creators in their efforts to provide the public with new stories about, and perspectives on, both well-known and less-known Hoosiers whose lives have helped shape our state.•

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• Brad R. Maurer is a partner in the Intellectual Property & Technology Practice Group at Bingham Greenebaum Doll LLP in Indianapolis. He can be reached at 317-968-5423, or via email at [email protected]. Opinions expressed are those of the author.