The Right of Publicity: Privacy Reimagined for a Public World

Below is an excerpt from Professor Jennifer Rothman's new book The Right of Publicity: Privacy Reimagined for a Public World, published on Friday, May 18 in the Los Angeles and San Francisco Daily Journal.

The frequently uttered and simplistic dichotomy—that privacy is about protecting the shrinking violets of the world, while the right of publicity is about protecting those who seek the limelight—was never true, and does a disservice to both those who wish to avoid publicity and those who seek it out. Actors do not want videos of them changing in a hotel room distributed online, their children followed, or their images slapped onto billboards or used in television commercials without their permission. This is not necessarily because they want to be paid for such uses, but because such uses are upsetting and disturbing, can destroy their reputations and ability to author their own identities, and turn them into puppets with others pulling the strings.

Nor do those of us who wish to live less public lives want to hide in our homes. We take walks, post family photographs to Facebook and Instagram, blog and tweet about our experiences, create YouTube channels showing how to prepare various recipes or master a video game, and leave traces behind when buying books on Amazon. These acts do not mean that private figures wish to cede the right to control how our names, likenesses, voices, and other information about ourselves is used by others. We all live our lives in public. But by doing so we should not become public property.

Professor Levitt's Testimony on Census Citizenship Question

On May 8, 2018 Loyola Law School, Los Angeles Dean for Research Justin Levitt testified before the U.S. House Committee on Oversight and Government Reform regarding the 2020 census. An excerpt appears below:

In the current political climate, asking a question about citizenship status of every individual in the country is no mere request for information. Those who work in and with communities skeptical about the role of the federal executive branch fear that the question will prove explosive. Secretary Ross made the determination to ask this question despite his own admission that the career staff of “the Census Bureau and many stakeholders expressed concern [that doing so] would negatively impact the response rate,” and despite the absence of any opportunity to test that impact before implementing the change.

Read his full testimony below:

Government Class Actions After Jennings v. Rodriguez

by Maureen Carroll, Alexandra D. Lahav, David Marcus & Adam Zimmerman

This post is excerpted from the Harvard Law Review Blog.

The Supreme Court’s recent decision in Jennings v. Rodriguez raised the momentous question of whether the government can indefinitely detain people without a hearing. If the government has its way, the case also may close the courthouse doors to a wide array of class actions long used to challenge unlawful government action.

In Jennings, the Court, in an opinion by Justice Alito, ruled that the government did not have to offer detained immigrants bond hearings under the Immigration and Nationality Act. But the Court declined to address a related issue—whether denying bond hearings would violate due process. Instead, the Court sent the case back to the Ninth Circuit to address that question first.

But the Court didn’t stop there. At the end of the majority opinion, the Court also invited the Ninth Circuit to consider whether plaintiffs could bring a class action at all for their due process claim. In so doing, the Court asked whether individual differences between plaintiffs prevented courts from certifying class actions in due process cases, just as they did in Wal-Mart Stores, Inc. v. Dukes, a multi-billion dollar damage class action decided by the Supreme Court seven years ago.

Read the complete post here.

The Right of Publicity―A Misunderstood, Misshapen, Bloated Monster

By Professor Jennifer Rothman

This post is excerpted from the Volokh Conspiracy, where Prof. Rothman is guest blogging this week.

The right of publicity is a law that few people outside of Hollywood know much about. Nevertheless, it is an increasingly important right in our digital age even when celebrities are not involved. The right of publicity provides a right to control uses of your identity, particularly your name, likeness and voice, and to stop others from using those without permission. The boundaries of these state right of publicity laws vary widely from state to state, with some limiting the claims to uses in advertising or on products, and others allowing almost any claim when the use is for the defendant's advantage. Some states limit claims only to those brought on behalf of the living, while others extend such rights after death.

In the book, I consider both the opportunities and risks that such right of publicity laws pose. I challenge the conventional, yet erroneous story of the right of publicity's development, and by doing so I provide direction on how to avoid the right's current dangerous path. The right of publicity in its current form jeopardizes the liberty of the very individuals that it is supposed to protect, while also interfering with free speech, and copyright law.

Today, I will share a short excerpt from the Introduction to the book that lays out some of the dangers and possibilities that the right poses, which I develop further in the book:

The right of publicity can be a valuable mechanism for addressing a variety of twenty-first century concerns about uses of people's images. But, despite the many benefits of having a right of publicity, its current incarnation comes with a host of dangers. The right of publicity limits what the public can say about public figures, even dead ones, and can bar the public from making sculptures, T-shirts, and posters honoring the recently deceased, such as Prince, Carrie Fisher, Robin Williams, and Muhammad Ali. It can block (and has blocked) the distribution and sale of busts of civil rights heroes, like Martin Luther King Jr. It has prevented video game makers from accurately depicting football players on historical team rosters, and television networks from using clips of their own broadcasts.

Read the complete post on the Volokh Conspiracy on Reason.

Strengthening and Reforming America’s Immigration Court System

Loyola Immigrant Justice Clinic Co-Director Emily Robinson '12 submitted a letter on behalf of immigration professors and clinicians related to the Senate Committee on the Judiciary Subcommittee on Border Security and Immigration prior to their April 18, 2018 hearing "Strengthening and Reforming America’s Immigration Court System."

An excerpt appears below:

Immigration judges are employees of the Department of Justice and are deprived of many protections had by Article I and Article III Judges. Attorney General Sessions introduced a new EOIR Performance Plan, which was first announced by EOIR’s head, James McHenry by e-mail on March 30, 2018. Under the new standards, which are set to go into effect on October 1, 2018, immigration judges will be required to meet a number of performance metrics, which include completing 700 cases a year and having fewer than 15 percent of their cases sent back by a higher court. These metrics are not put forth as suggestions or guidelines, but, rather, are inextricably tied to job security and raises. This means that immigration judges have a financial stake in the number of deportation orders they enter, or clients they convince to self-deport orvoluntarily depart.

Read the letter in its entirety

Seventh Circuit Certifies Question to Indiana Supreme Court in Fantasy Sports Case

By Professor Jennifer Rothman

This article originally appeared on Rothman's Roadmap to the Right of Publicity 

Today, the Seventh Circuit with lightening speed issued an opinion in the Daniels v. Fanduel case seeking guidance from the Supreme Court of Indiana. The case, which I have previously written about, involves a lawsuit by former college football players against online fantasy-sports companies FanDuel and DraftKings. An Indiana district court dismissed the case last September, concluding that the use was exempt under Indiana’s right of publicity statute because the uses were newsworthy and reported on a topic of public interest.

The Seventh Circuit heard oral arguments in the case on February 22nd, and Judge Frank Easterbrook repeatedly asked the attorneys why the interpretation of the Indiana statute was not something better addressed by the state court. It therefore is no surprise that today the court issued an opinion that he authored calling for the state’s supreme court to answer those questions.

The opinion focuses on the meaning of the exemptions to Indiana’s right of publicity statute, and particularly the question of whether the for-profit fantasy games fit within the purview of the statute’s exemptions for uses in “material that has . . .newsworthy value” or “in connection with the . . . reporting of an event . . .of general or public interest.” 

Law School Clinics Key to Bridging Access-to-Justice Gap

By Dean Michael Waterstone

This op-ed originally appeared in the Feb. 14 edition of the Los Angeles Daily Journal.

Legal education has been a source of vigorous debate and criticism. Some is no doubt warranted. High tuition. A challenging job market for new grads. President Barack Obama opined that the third year of law school is unnecessary. These are all important and complex topics, and worthy of public discussion.

But another issue is of pressing importance, and law schools have an important story to tell. There is an access-to-justice crisis in this country. Three quarters of litigants in state courts are unrepresented. In California, there is one legal aid lawyer for every eligible 6,000 poor people. The most vulnerable members of our society, facing some of the most challenging struggles of their lives, are being forced into the legal system on their own, where they will unquestionably meet worse outcomes. This is undermining confidence in one of our most prized national assets — our commitment to the rule of law. The World Justice Project currently ranks the United States 94th out of 113 nations on the “Accessibility and Affordability of Civil Justice” 2016 Index.

This is a society-wide problem, and law schools have a crucial role to play. One of the primary ways we do this is through clinical legal education. Based on the medical residency model, clinical legal education gives law students an opportunity to represent actual clients under the supervision of clinical law professors. Most states, including California, have student practice rules that allow qualified law students to do this.

Our law school, Loyola Law School, Los Angeles, has a longstanding commitment to clinical legal education. It is a key way we fulfill our social justice mission to train our students to be lawyers for others. Our Loyola Immigrant Justice Clinic represents some of the most vulnerable members in our community. They recently held an event where they helped 100 Deferred Action for Child Arrivals recipients with their renewals.