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Schwarzenegger Bobblehead Case: First Amendment or Right of Publicity. FindLaw Interview with William T. Gallagher of Townsend and Townsend and Crew LLP

FL: What convinced you into taking this client and this case?

I took this client on for two reasons: First, I and my firm have expertise in this area of law--we're intellectual property law specialists. I also teach about the right of publicity at Santa Clara University School of Law and at Golden Gate University School of Law, so I know the issues. Second, I truly believed the plaintiff in this case was over-reaching and that the defendant had a perfect right to sell the bobblehead doll depicting Governor Schwarzenegger brandishing an assault rifle and wearing a bandolier. It makes a perfect statement about the dual political/Hollywood persona of the Governor.

FL: How did you see the governor's right of publicity claim interacting with your client's First Amendment rights? How did the governor see it?

Our position was that the right of publicity stops where it unduly infringes on the defendants' right to make a doll that comments--on a number of levels--about the image of a sitting governor. Under the recent California State Supreme Court precedent or under general First Amendment jurisprudence, we believed the defendants had an absolute right to sell this doll.

Plaintiff, obviously, took a very different position. Its position was that the doll and box it was sold in were merely using the Governor's image to sell a product. However, while it's true the bobblehead dolls were sold, that certainly does not trump First Amendment rights in this context. Political cartoons are sold, but nobody would attempt to argue that they are not core protected political speech under the First Amendment. The bobblehead dolls are best analogized to three-dimensional political cartoons.

FL: How would the First Amendment right fare against the right of publicity if the plaintiff was a newsworthy, but non-political, figure like Kobe Bryant and his rape trial or Ben Affleck and Jennifer Lopez and their high profile relationship?

That's a good question because I want to stress two things: First, the right of publicity statute in California (and most states) covers everyone--not simply public figures or celebrities. Second, in interpreting the proper relationship between the right of publicity and First Amendment rights under California law, the California Supreme Court has not focused on whether the figure being depicted is a public figure or a politician. Rather, the Court created a test that asks whether the depiction at issue is "transformative". If it is transformative, First Amendment protection applies.

And an image of an individual is transformative when it is something more than a mere mechanical reproduction of what it depicts--how much more is a matter of debate among IP law specialists and academic commentators. So, whether we are talking about a politician or the celebrities you name, the test will technically be the same. As a practical matter, however, I think the context is critical when analyzing this issue. For instance, it is easier to argue that the Governor Schwarzenegger bobblehead doll is transformative because the doll is not merely an actual likeness of Mr. Schwarzenegger, but it also clearly adds design elements--such as the gun and bandolier--that convey a political message, whether it be parody, caricature, or satire. When a viewer observes a mere mechanical reproduction of the Governor's image, such as an official state portrait or a traditional sculptured bust, he or she understands "that's the Governor"; but when a viewer sees the Schwarzenegger bobblehead doll, there is more being communicated: the parody or caricature derives from the mix of the "Governor" and "Hollywood action figure" design elements that makes the doll so amusing. This is where the California Supreme Court's transformative test and traditional First Amendment analysis overlap. Here the critical difference is that the thing being sold, the doll with Governor Schwarzenegger's image, is itself the message, just like a political cartoon. The image is not being used to sell something else.

FL: Can you think of any scenario where a political figure could claim a right of publicity against someone using their name or likeness on a product?

Sure. Politicians don't give up all of their rights of publicity merely by entering public office, just most of them. You can't use an unauthorized image of Governor Schwarzenegger, for instance, to sell toothpaste or ab-cruncher equipment.

FL: What was the difference in handling a high-profile case with a high-profile litigant such as the governor?

This was an amazingly high-profile case. More so than I imagined. We were doing world-wide media interviews after taking on the representation of the defendants. And we had to be very sensitive to this. However, since most of the publicity, quite frankly, tended to be very sympathetic to our clients (e.g., a New York Times editorial chastising the Governor for initiating this litigation), I think the high-profile nature of the case helped our position.

FL: What was your approach in dealing with the media in this case?

The approach to dealing with the media was to make clear the defendants position was a matter of principle: they firmly believed they had rights under the First Amendment that trumped any supposed right of publicity. But we were also careful to make clear that the doll and the defense of this matter were not personal attacks on the Governor. This was a case about legal principles, not politics.

FL: What do you generally advise clients to do in high profile cases?

Generally, it's good advice to simply work with your counsel to control any statements that may make it into the press and become "Exhibit A" to your deposition if the litigation continues. Make sure all media requests, for instance, are sent to counsel. That way your message, if any, is consistent with your legal theories of the case.

FL: What did you do to settle the case?

This case settled, like many other cases, due to the fact that counsel for both sides kept the lines of communication open, which facilitated settlement discussions once both sides saw there were mutual benefits to stopping the litigation.

FL: What would you advise others who wish to make commercial parodies of celebrities in the future?

The best advice is to get good legal counsel in advance so that you can make appropriate business decisions based on the risks and benefits of proceeding to market any product that depicts a celebrity, including politicians. There is a high likelihood that litigation will ensue in many cases, so it makes sense to take some preventative measures beforehand to make sure you're comfortable with the risks involved. It doesn't mean you shouldn't make such products, just that you need to know what's likely to happen if you do so. And it also makes very good sense to use experienced intellectual property counsel--which I think the defendants in this case had!

William T. Gallagher is a partner in Townsend, Townsend & Crew's San Francisco office and specializes in intellectual property and related "competition law" litigation and counseling. He recently represented a small bobblehead maker against California Governor Arnold Schwarzenegger in a case involving the bobblehead maker's First Amendment rights and the Governor's right of publicity. He recently spoke about the case with FindLaw.

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