The "right of publicity" is an unusual, relatively under-developed, and controversial form of state-law created intellectual property that protects against the unauthorized appropriation of one's likeness, image or identity. Even in California, with its prominent entertainment and celebrity industries, the right of publicity has many vague and uncertain contours and its scope remains undefined In particular, one issue that remains unclear in California (and in most other jurisdictions that recognize rights of publicity) is the proper balance between rights of publicity and First Amendment rights of free speech and expression. This issue was squarely and dramatically raised by the ODM defendants' sale of an unauthorized bobblehead doll incorporating the likeness of Arnold Schwarzenegger, who is both a Hollywood movie star and, most recently, the governor of California. The ODM defendants claimed that the sale of this doll was protected as expressive speech under the First Amendment, particularly since the doll commented on a political figure, and therefore its sale did not violate the plaintiffs right of publicity. This case also specifically raised the question of whether California's statutory and common law rights of publicity permit a sitting politician to stop the sale of an item - here, a bobblehead doll - that appropriates the politician's image to create a playful caricature, parody, or satire. This article argues that the ODM defendants' First Amendment defense should have prevailed had the suit advanced to trial, although this outcome was by no means certain, especially given the ambiguities in the right of publicity law in California. The article further contends that plaintiffs theory of the case was overbroad and legally unsupportable because it presumed that plaintiff had an almost absolute right to control the use of the Schwarzenegger image, at least when that image is used on any product. That broad claim, however, is too simplistic and should have been rejected by the courts. Just as with any other form of intellectual property, the right of publicity is a limited right. The primary justification for the right of publicity is to permit the owner of the rights to control uses of an image or likeness that detract from the ability to derive economic value from such use. Where an expressive and creative appropriation of a celebrity image constitutes caricature, parody, or satire, as in the Schwarzenegger bobblehead doll example, there can be no legitimate argument that the right of publicity has been violated because there is little possibility that the rights-owner's ability to derive economic value from the likeness or image has been lessened. Moreover, where the caricature, parody, or satire involves a politician, First Amendment rights to creative free expression should properly override any claimed right of publicity except in the most limited circumstances, such as where the celebrity image is used as an advertisement or in other circumstances that create confusion as to sponsorship or affiliation.
45 Santa Clara L. Rev. 581 (2005)