So what does Hugo Zacchini the human cannonball have in common with the NCAA and former Arizona State quarterback Sam Keller?
All of the above have sought legal remedies against organizations that have used their images without compensation or consent, according to an article in the New York Times. Here is an excerpt:
When Sam Keller…sued the video game publisher Electronic Arts last year, he was seeking compensation for himself and other college athletes whose names were not used but whose images he contended were being illegally used by the company.
But to the media conglomerates, athletes, actors, First Amendment advocates and others who have recently weighed in on the case, Keller’s lawsuit is about much more than video games. The outcome of a recent appeal filed by Electronic Arts, their lawyers say, could rewrite the rules that dictate how much ownership public figures have over their images — and the extent to which outside parties, including media and entertainment companies — can profit from them.
The case is drawing attention because it gets to the heart of a highly contested legal question: when should a person’s right to control his image trump the free-speech rights of others to use it?
It is… an area about which the Supreme Court has remained largely silent. The court has taken up the right-of-publicity issue only once, in 1977, when it ruled in favor of Hugo Zacchini, a circus performer who originated the human cannonball act and who sued the owner of a television station that broadcast his entire act without his consent.
So, should free speech trump the right to control one's image? As the article says, a key distinction is where the image is used – e.g. in entertainment such as video games or in news. Then again, some would argue that news is entertainment.
Quite honestly, I am not sure where the line should be drawn, all I can say is "right of publicity" – I've got to admit, I like the sound of that, so sue me!
I think it depends on whether the content in question is being used for financial gain or personal gain of other sorts, either directly or indirectly. If it’s used for information purposes or in some way for the public good (unlikely), then that’s a different story.
As an artist, I’ve had to deal with people using my art images on their blogs, to enhance their blogs (matching their poems with my photography, for instance, because they felt it was a good synthesis). One woman used about 20 of my images without my permission. Which is tantamount to sneaking….
I know this is a peripheral issue, and the people cited here are or were, well known, but the underlying principle is the same: respect for artist’s and performer’s rights.
It was very interesting for me to read the blog. Thanx for it. I like such topics and everything that is connected to this matter.