What do a Mets game, a Flying Rabbi, and a private part of Lenny Kravitz's anatomy have in common? Lawyers have had entirely too much latitude, without substantial consequence, in making legal claims on their behalf.
The other day, I was watching my beloved Mets get destroyed by the cross-town Yankees, and a booming voice arrived on the television and declared: "This copyrighted telecast is presented by the authority of the office of the commissioner of baseball and may not be reproduced or transmitted in any form..." Not reflective of last week's Lenz v. Universal "Dancing Baby" ruling on fair use, but understandable under copyright law, nonetheless.
It was the second part that grabbed my attention: "...And any accounts or descriptions of this game may not be disseminated without express written consent." Yes, MLB is officially telling you and me in Legalese that we can't publicly talk or write about that Mets-Yankees game! And they do it all the time! Why? Because there is no real recourse--even after the aforementioned Lenz decision--for phony claims of intellectual property protection, and, much like a cease-and-desist order, such recorded threats can often bully a small fry into compliance.
Sometimes, this desire to wield copyright law to shut down dissemination of information is not borne of legal hubris and exercise of outsized political power. In an important reversal earlier this year (one that most copyright experts agree was correct), the 9th Circuit decided, in Garcia v. Google, that an actress does not own a copyright in her own performance, even if it is manipulated against her will and the manipulated performance subjects her to death threats, as Garcia's did in a provocative film called "The Innocence of Muslims." Copyright belongs to the author who records an original work in a fixed medium. Believe it or not, Spalding Gray, the late great performer of monologues, told his life story from memory. Yes, books were created from his great performances (Swimming to Cambodia, Monster in a Box, etc.), and his journals were published, and those books were/are protected by copyright. But his individual performances, which were different each night, would not have been protected by copyright, unless they were each recorded by an audio or video recorder, or substantially similar to the books (if the books were published before the performance)! Life stories themselves are not protected by copyright, and neither are performances, because a fixed medium is a necessary element of valid copyright.
Which makes Lenny Kravitz's recent threats to use copyright law to shut down the spread of photos of a recent wardrobe malfunction so disconcerting. It was understandable that he would like to have embarrassing pictures removed from the Internet, but his legal team chose the wrong avenue of prosecution. Last week, the excellent legal podcast This Week in Law discussed the question of Kravitz's right to copyright protection, er, at length, and all of the attorney panelists agreed he was not protected. So, why do people wrongly try to use copyright infringement as a basis for stopping unwanted distribution of creative (and sometimes non-creative) works? Because the federal Digital Millennium Copyright Act takedown provisions offer quick and easy remedies that other types of law do not. The notions of "Rights of Publicity" and "Rights of Privacy" differ from state to state, and are slower to enforce. New York's "Right of Publicity" laws are not nearly as restrictive and far-reaching as California's, and, in fact, are subsumed in New York's Civil Rights of Privacy laws. Just this week, New York's Second Department ruled against the "Flying Rabbi," a bearded man from Brooklyn who was neither flying nor a rabbi, but whose YouTube video was spliced into a gag reel on an episode of Jimmy Kimmel's late show. The Flying Rabbi tried to sue in California and New York, and came up short in both states, because he wasn't entitled to a remedy in the state of California, and the remedies offered by New York law were not applicable to the Flying Rabbi's complaint. The fact is, there are many situations when law does not have an adequate remedy for a perceived wrong.
So, why bother drawing up a contract for life story rights or appearance/likeness releases, when they are likely unprotected by copyright or state laws? Because wronged people will continue to use every weapon in an attorney's arsenal--threats, claims, cease-and-desist letters, and lawsuits--as long as the risk of doing so is outweighed by the reward.