Lloyd J. Jassin is PMA’s First Amendment counsel, a vice president of the Media Coalition, and a publishing attorney. He is also coauthor of The Copyright Permission and Libel Handbook (John Wiley & Sons). To contact him, visit www.copylaw.com. This article discusses general legal issues of interest and is not designed to give any specific legal advice pertaining to any specific circumstances. It is important that professional legal advice be obtained before acting upon any of the information contained in this article.

As this article was going to press, PMA signed the Book and Library Community Statement supporting the Library and Bookseller Protection Act (S. 1158) and The Library, Bookseller and Personal Data Protection Act (S. 1507), both amendments to the USA PATRIOT Act. While Congress was well-intentioned, it passed the PATRIOT Act without much deliberation in the wake of September 11.

Under Section 215 of the PATRIOT Act, FBI agents are allowed to inspect bookstore and library records without probable cause. Before Congress passed the act, only a grand jury or magistrate court could warrant a subpoena to obtain library or bookstore records, and a showing of probable cause was necessary. Most disturbing, the PATRIOT Act provides that requests for access to records can be heard before a secret court, denying booksellers and librarians an opportunity to challenge searches before they are authorized and executed. Under a gag order, subpoenaed parties cannot even tell anyone that the FBI sought or obtained information from them under Section 215.

Since the right to purchase and borrow books anonymously, free from government interference, is essential to the free flow of ideas, PMA, the American Booksellers Association (ABA), the American Library Association (ALA), Barnes & Noble, and many others are supporting federal legislation that would amend Section 215 of the act to exclude bookstores and libraries from its scope.

Free Speech Update

Two recent right of publicity cases show that freedom of speech, while it may be down for the count, is not out.

Working with the Media Coalition–a group of trade associations that cooperate in the fight against censorship–PMA has recently been involved in two high-profile friend-of-the-court briefs that argued that portraying real people in fictional works (whether books, plays, or movies) is constitutionally protected speech.

When real people appear in a fictional work, novelists and their publishers must ask, Can these real people successfully sue me for violating their right of publicity? Simply stated, the “right of publicity” is the right of an individual to control the commercial exploitation of his or her name or likeness. While the typical right-of-publicity claim arises in the context of unauthorized product endorsements, several recent right-of-publicity cases involve fictionalization. Either the defendants used actual people as fictional characters, or they portrayed a real person in a work of “faction,” which, like its first cousin the docudrama, blends fact and fiction.

Falsely suggesting that an individual endorsed the sale of certain goods or services is a clear violation of that person’s right of publicity. As outlined below, the issue becomes murky when publishing an unauthorized fictional account of a real person.

The following two cases, one against a comic book publisher and the other against the producers of a motion picture dramatization, show two ways right-of-publicity claims may arise in the context of fiction.

Case One: Singing the Blues About Comics

In a series of lawsuits against DC Comics, the legendary blues guitarists Johnny and Edgar Winter asserted that the unauthorized use of their names and likenesses in a comic book series called Jonah Hex: Riders of the Worm and Such violated their right of publicity under California law. (In addition, the lawsuit alleged a defamation claim, without success.) DC Comics earned the brothers’ wrath by depicting them as gun-toting, vile, depraved, pink-eyed, subhuman, half-worm, singing cowboys.

Although courts have generally refused to apply the right of publicity when a celebrity’s name or likeness has been used without permission in a fictional work, the California appellate court–using a new legal standard that asks “[W]hether a product containing a celebrity’s likeness is so transformed that it becomes primarily the defendant’s own expression rather than the celebrity’s likeness”–held that the Winters had the right to a trial.

When DC comics appealed, the Winter brothers argued that there could be no First Amendment protection for the publisher because it had used their names and likenesses to increase sales of its comic books. However, the California Supreme Court reversed the lower court’s decision, holding that the comics contained significant “transformative” elements that derived from a source other than the Winter brothers’ fame. Since the characters and their portrayals were not literal depictions, the court reasoned, the comic books were unlikely to interfere with the economic interests protected by the brothers’ right of publicity. What’s more, the court said that the right to comment on, parody, lampoon, and make other expressive uses of celebrity images must be given broad scope.

While the California Supreme Court got the right result in Winter v. DC Comics (2003), the vague “transformative use” test invites judges and juries to determine whether a work is sufficiently expressive to enjoy First Amendment protection. As argued in the amicus brief, it is PMA’s position that literary works should be categorically protected without any showing of transformation. Otherwise, fictional works that name names and purportedly tell what actually happened may become off limits for fear of protracted litigation over the issue of whether the work is sufficiently transformative or not.

Case Two: The Perfect Storm Suit

In a complaint filed against the film distributor and producers of The Perfect Storm–a fictional account of a fishing crew’s fight for survival aboard a commercial fishing vessel during the “storm of the century” off the coast of Gloucester, Massachusetts–the families of two of the ill-fated crew members sought damages for unauthorized appropriation of their likenesses and the likenesses of their family members lost at sea. In the movie adaptation of the bestselling book by Sebastian Junger, Warner relied on “poetic” license–not a film option or release form–to depict the relationships between the crew members and their land-based families. Notably, the movie contained disclaimers at the beginning and during the closing credit sequence stating it was not factually accurate.

At issue in Tyne v. Time Warner Entertainment (2003) is whether the picture’s unauthorized depictions of the surviving family members and their deceased relatives were “for trade, commercial or advertising purposes,” as that phrase is used in Florida’s right-of-publicity statute (Florida was where survivors’ families originally filed suit). In this instance, the U.S. Court of Appeals was asked to scrutinize a Florida right-of-publicity statute for First Amendment compliance.

The U.S. Court of Appeals for the Eleventh Circuit, however, refused to decide the question of what constitutes a proper accommodation of First Amendment interests in a right-of-publicity case involving a fictionalized film based on a true story. Instead, it sent the First Amendment issue back to the Florida Supreme Court.

On appeal, the Tyne plaintiffs argued that the film lacked First Amendment protection because the depictions of events at sea, and of the relationships among the crew members–which were not reported in the press–were intentionally fabricated. The Florida Supreme Court will now decide that issue.

PMA, along with its Media Coalition partners, participated in an amicus brief in this pending case, arguing, among other things, that the First Amendment protects the depiction of real people in stories blending fiction and nonfiction. We hope the Florida Supreme Court will agree.

As the preceding cases make clear, there is no uniform federal right-of-publicity law; writers and publishers can be sued in any of the 50 states for works that are published. This leaves these writers and publishers of fictional works uncertain as to whom and what they are free to portray, chilling their First Amendment right of free expression. Moreover, as long as courts in some jurisdictions are allowed to make aesthetic decisions that a particular work is transformative, free expression remains at risk. PMA will continue to work with the Media Coalition and other groups to ensure that there are procedural safeguards that will allow our members to write and publish freely.

A Tip on Libel and Right of Publicity Claims

A common litigation strategy for celebrities is to allege right-of-publicity and libel claims in their lawsuits. While the right of publicity protects a person’s economic interest in their persona, libel laws protect people’s reputations. Caution! Although a fictional work may pass muster as far as the right of publicity is concerned, it may still contain libelous statements. In a recently decided case, someone claiming to be a character in Joseph Klein’s roman à clef Primary Colors raised an unsuccessful (but triable) libel claim against Klein and his publisher. Publishers and writers should keep this potential threat in mind when books include fictional characters based on living individuals.