Inspiration can come from the most unlikely of sources. Newton, for example, is reputed to have worked out his theory of gravity when an apple fell on his head.
And I got the idea for this blog post from watching the latest episode of Drop Dead Diva, a legal dramedy on the Lifetime Network.
Let’s be clear: this was not by choice. I was dragooned into watching the show by my wife. But as is so often the case, she knew something I didn’t. Here, she knew that underneath the stock characters, poor acting and hackneyed plot lines were some real questions about the applicability of intellectual property laws to cutting-edge emerging technologies.
And that’s worth a blog post.
The story begins with Olivia, the frustrated and under-loved wife of Brian, an entrepreneurial computer programmer. Olivia approaches two lawyers in our protagonist’s firm seeking a divorce. Her pre-nup limits her recovery unless she can prove that Brian has been cheating on her. So Olivia alleges that he has, in fact, been cheating–with “Eve,” the virtual assistant program that Brian created and is about to bring to market. Eve runs on a tablet computer and is clearly inspired by Apple’s Siri.
The lawyers (who quickly agree to pursue Olivia’s “out of the box” theory) spend most of the episode gathering evidence demonstrating Brian’s “infidelity.” They show, for instance, how much time he spends interacting with Eve–asking her questions, telling her jokes, listening to her read to him at night–instead of with his wife.
When that doesn’t convince the judge, the lawyers then track down the human model on whom Eve’s physical appearance is based, thinking maybe it’s her that Brian’s enamored of. Another dead end. The two have no relationship, and other than physical appearance, there’s no similarity between the model and Eve.
But wait! All of the details about Eve that differ from the model–her birth date, her hometown, her highest level of schooling–all match Olivia, Brian’s wife. (Why does a computer program have a birthday, a hometown, or a master’s degree in education? Because this is Lifetime. But I digress.) “So?” asks the ruggedly handsome yet muscle-headed Male Lawyer. “That only proves that Brian was having an affair with his own wife.”
“No,” says the plucky Female Lawyer with a hidden affection for her colleague. “That’s where you’re wrong.”
The next thing we know, the lawyers are in chambers (why is it always in chambers?) explaining to the judge that Brian has infringed Olivia’s right of publicity. (They don’t actually say that, but it’s what they mean.) For precedent, they rely on the actual 1993 decision in White v. Samsung. There, a Samsung commercial depicted a future Wheel of Fortune game show in which a faceless robot wearing a blond wig turned the letters. Vanna White prevailed on a claim that the robot misappropriated her likeness, even though the robot was an allusion to Vanna’s occupation rather than her personal identity.
“Vanna’s essence is in the robot,” explains newly enlightened Male Lawyer, “the same way that Olivia’s essence is in Eve.” Flummoxed by this unassailable logic, Brian quickly capitulates and agrees to pay Olivia a royalty on all proceeds he receives from sales of the Eve program. Then, having learned to love his colleague for her legal mind rather than her stunning good looks, Male Lawyer takes Female Lawyer by the arm and off to a romantic, candle-lit dinner.
As my readers know, the right of publicity is one of my favorite areas of law. In addition to having litigated several publicity rights cases, I have spoken publicly on the topic several times, maintain a list of all publicity rights case law in my home state of Michigan, and have predicted that social and emerging media will make right of publicity disputes increasingly common and important.
The right of publicity is a state-law right that emerged from the common law of privacy to become recognized as a form of intellectual property. Although the particulars vary slightly from state to state, it is essentially the right of an individual to control the commercial exploitation of his or her likeness. In this context, one’s “likeness” typically takes the form of one’s physical appearance, name, signature, or voice. But the common law includes in that term any other “indicia of identity.” So a famous race car driver’s likeness was infringed by using a picture of his distinctive car. Johnny Carson’s right of publicity was infringed by the product name “Here’s Johnny Portable Toilets.” And yes, Vanna White’s likeness was found to have been exploited by Samsung’s robot.
But White v. Samsung, a decision of the often-controversial Ninth Circuit Court of Appeals, also represents the outer boundaries of publicity rights law. In a vocal and well-reasoned dissent, Judge Kozinski lamented that “every famous person now has an exclusive right to anything that reminds the viewer of her.” Both the Sixth and Tenth Circuits have explicitly rejected, and refused to follow, White‘s logic. So its value as a basis for evaluating new technologies is questionable at best. (Giving credit where due, however, the show takes place in California, which is in the Ninth Circuit. So White is, in fact, binding precedent there.)
The larger question is whether the case of “Olivia v. Eve” would pass muster even under White‘s version of the right. The answer is almost certainly “no.” Even conceding that Eve could capture Olivia’s “essence” even without mimicking her physical appearance, the overlap would have to be enough to at least suggest Olivia’s identity to a rational consumer. Yet the only “data points” we’re told of that match up are their birth date, hometown, and schooling. (Again, why?) Even the intrepid lawyer who comes up with the theory in this episode, however, describes these as “totally random stats.” No one other than Olivia and her lawyers are likely to ever make the connection between Eve and Olivia based on these obscure “data points.”
Moreover, in order to be actionable, the person’s likeness generally needs to have commercial value. In other words, the association of the likeness with a product or service has to make a consumer more likely to pay attention to it or want to buy it. This is why the right used to be available only to “celebrities,” a term that some courts still use. The proliferation of social and other digital media has blurred the definition of “celebrity” so much that literally anyone’s likeness could potentially have commercial value in the right setting. But if the association of the likeness with the product isn’t likely to make a bit of difference to consumers, then good luck proving a right of publicity claim.
This episode gives us no reason to believe that any putative purchaser of Eve would know or care who Olivia is. Therefore, her right of publicity claim would almost certainly fail.
Plausibility aside, this episode still raises a number of very topical issues about the technologies that are emerging all around us. Putting “skin” on Siri and sexualizing her, for instance, is something I’ve long predicted. We’ve already seen men marrying video game characters and heard plans for robot prostitutes. The augmented reality porn industry is well underway, which I’ve predicted will wreak havoc on human relationships. So it can’t be long before a man’s preoccupation with his virtual assistant does, in fact, break up his marriage.
Virtual assistants and other digital avatars are also fertile grounds for right of publicity claims. In fact, we’ve already seen several analogous claims in the past year, involving “holograms” of such deceased celebrities as Tupac Shakur and Marilyn Monroe. And several celebrities, including Bette Midler, Tom Waits, the Romantics and Arnold Schwarzenegger have asserted publicity rights claims against those with sound-alike voices. How long until someone weds a famous likeness to a program like Siri, such that your favorite celebrity becomes your digital servant?
Social media in general is a breeding ground for publicity rights claims. As I noted in my Mashable article earlier this year, “we’ll see more social media users attempting to use the Right of Publicity to control how their personal likeness and information gets used.” In the same article, I mentioned a putative class action lawsuit asserting such claims against Facebook based on its Sponsored Story advertising program, which turns users’ “likes” into ads displayed to their friends. Earlier this week it was announced that Facebook agreed to pay $10 million to settle that lawsuit.
So, say what you will about Drop Dead Diva and Lifetime. This week, they were on the cutting edge of law and technology.