Total Rekall of the Scharzenegger doll

May 1, 2004 10:22 AM

CNN reports that Arnold Schwarzenegger is threatening to sue Bosley Bobbers seeking to stop production of a charity bobblehead doll. The doll shows the former action-actor turned Governor of California posing in a business suit, ammo belt and assault rifle. Arnold is arguing that he owns the marketing rights to his likeness. The creators argue that he lost those rights when he became a political figure. However, this seems to be a repeat of Hustler v. Falwell. And courts lately have been skeptical of trademark rights trumping satire. On the other hand, there seems to be a fine line between editorial use and commercial exploitation.
posted by KirkJobSluder (11 comments total)

Setting aside issues of Arnold himself, I think this is actually very interesting. If it goes to court, the case will set an important precedent. I don't really see it as a repeat of the Falwell case at all. Was Falwell licensing his likeness rights before? Did the Hustler satire of him come soon after he had changed careers, from one in which likeness rights are a huge issue, to one in which seeing your own image used without your permission is par for the course?

Did this ever come up with Reagan or Ventura?
posted by bingo at 11:47 AM on May 1, 2004

This is an interesting case. I'll be interested to follow this one. Seems like from a purely legal standpoint, it could be argued pretty effectively for both sides.
posted by lazaruslong at 11:50 AM on May 1, 2004

Could be interesting, but I think fair use wins. Sorry for the forthcoming geekery, but I'm studying for exams and this helps.

The Tenth Circuit held recently that baseball cards parodying major league players (i.e. "Treasury Bonds" instead of Barry Bonds) were fair use under Oklahoma's right of publicity statute. Cardtoons v. Major League Baseball Players Ass'n, 95 F.3d 959 (10th Cir. 1996).

The reasoning in Cardtoons is pretty solid: The baseball card makers were in a commercial enterprise, but that can't be an absolute bar to a parody defense. Logically, nearly everything is commercial. Furthermore, the nature of parody is such that it's inherently negative, and the owner of the right would never privately license it out. The unlicensed parody is thus the only way that the public will ever have access to the particular form of expression. See, e.g., Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994) (the 2 Live Crew "Pretty Woman" case.)

The Falwell case was a defamation issue, not a right of publicity issue. Nobody's claiming that Arnold slept with his mom; they're merely making fun of his public image. I think that's perfectly valid.

It's also not a trademark issue, as you can't usually register your own identity under the Lanham Act without an intent to use that likeness in commerce as a product identifier.
posted by PrinceValium at 12:13 PM on May 1, 2004

i'd just like to be the first to say

plo chops!
posted by quonsar at 12:42 PM on May 1, 2004

Legality aside. I suspect that it will be primarily a case of whether Bosley Bobbles runs out of defense funds before Arnold runs out of political capital.
posted by KirkJobSluder at 12:52 PM on May 1, 2004

The satire/parody defense is fairly weak here in any case. An image of Arnold that could easily have come from one of his movies does not in any way criticize him or ridicule him, it merely identifies him.
posted by kindall at 2:31 PM on May 1, 2004

The satire/parody defense is fairly weak here in any case. An image of Arnold that could easily have come from one of his movies does not in any way criticize him or ridicule him, it merely identifies him.

The aesthetic or satiric merits of the parody is not relevant when determining whether the parody is protected as far as First Amendment law is concerned. And since Arnold Schwarzenegger is not a literary work, there's no way you can charge the makers for plagiarism for being too unoriginal in their parody.
posted by jonp72 at 3:11 PM on May 1, 2004

Another issue is the "charity" aspect of it, the seeming defense being that "we did not profit", so it is not commercial exploitation. However, charities no longer have carte blanche for copyright use violations any more.

Ironically, I can imagine this whole issue being bundled together with all the changes made to copyright law right now. Everything seems to be up in the air.

Fortunately, we refuse the European mistake of giving our celebrities special protection from parody, satire and criticism, just because they are wealthy and powerful.
posted by kablam at 3:12 PM on May 1, 2004

Wait for him to come back to reality when finally he figures out it's a charity doll.

On preview: kablam since when european do what you say ? Before pontificating about the european "errors" you could check this link in which you'll see how some celebrity in U.S. is getting "special protection" under the form of not being fined by FCC (Oprah Winfrey ) and some other is not (Howard Stern) and is being fined out of the market by FCC. Obviously both are criticized by everybody...but nobody cares , except I guess some politically motivated group at FCC ...probably because Stern is now bashing Bush around the clock.

Now I guess europeans don't have much to learn from you guys on lack of special protection.
posted by elpapacito at 5:25 PM on May 1, 2004

How about Gerhard Schroder suing over tabloids saying that he dyes his hair? And since you now have that charming EU arrest warrant, if an Englishman says that he is a weiner-dog humping, lederhosen-sniffing, sauerkraut munching, grey-haired old sod, he can now be extradited to Germany to stand trial for slander?
posted by kablam at 8:33 PM on May 2, 2004

The aesthetic or satiric merits of the parody is not relevant when determining whether the parody is protected as far as First Amendment law is concerned.

Yeah, but before that, you have to determine whether it is or is not in fact a parody. My point is, this doesn't seem to be a parody. It's a caricature, but a caricature is not a parody. A parody says something more than "this is a funny-looking version of Arnold Schwarzenegger, laugh at it!"
posted by kindall at 2:54 PM on May 10, 2004