Hustler v. Falwell.pdf - Mark Roesler

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- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n5 Valentino had a right of publicity in his name and likeness. In light of the disposition of this appeal, I need not decide whether any right of publicity would attach to Valentino's "personality." It is interesting to note, however, that appellant has not provided -- and I find it difficult to discern -- any easily applied definition for this amorphous term. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - It must therefore be determined whether respondents' conduct constituted an infringement of Valentino's right of publicity. In resolving that question, the context and nature of the use is of preeminent concern. Valentino's name and likeness were allegedly used in a work of fiction [*865] broadcast on television. Appellant characterized respondents' film as "a work of fiction about the life and loves of an Italian actor who became Hollywood's first romantic screen star and who died at the height of his fame." Valentino was identified as that character. n6 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n6 Such statements establish that this is not a case in which the use is wholly unrelated to the individual. A different result may follow if, for example, respondents had published Rudolph Valentino's Cookbook and neither the recipes nor the menus described in the book were in any fashion related to Rudolph Valentino. (Cf. Grant v. Esquire (S.D.N.Y. 1973) 367 F.Supp. 876; Gill v. Hearst Publishing Co. (1953) 40 Cal.2d 224 [253 P.2d 441]; Leverton v. Curtis Pub. Co. (3d Cir. 1951) 192 F.2d 974.) While Valentino's name was allegedly used to advertise this particular film, this is not a case in which a celebrity's name is used to promote or endorse a collateral commercial product or is otherwise associated with a product or service in an advertisement. (See, e.g., Stilson v. Reader's Digest Assn. PAGE 45 25 Cal. 3d 860, *865; 603 P.2d 454, **457; 160 Cal. Rptr. 352, ***355; 5 Media L. Rep. 2208 FOCUS Inc. (1972) 28 Cal.App.3d 270 [104 Cal.Rptr. 581]; Motschenbacher v. R. J. Reynolds Tobacco Company (9th Cir. 1974) 498 F.2d 821; Lombardo v. Doyle, Dane & Bernbach, Inc. (1977) 58 App.Div.2d 620 [396 N.Y.S.2d 661].) - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Film is a "significant medium for the communication of ideas." (Joseph Burstyn, Inc. v. Wilson (1952) 343 U.S. 495, 501 [96 L.Ed. 1098, 1105, 72 S.Ct. 777].) Whether exhibited in theaters or on television, a film is a medium which is protected by the constitutional guarantees of free expression. (U.S. Const., 1st and 14th Amends.; Cal. Const., art. I, @ 2; Joseph Burstyn, Inc. v. Wilson, supra, 343 U.S. at pp. 501-502 [96 L.Ed. at pp. 1105-1106]; Red Lion Broadcasting Co. v. FCC (1969) 395 U.S. 367, 386-390 [23 L.Ed.2d 371,
386-389, 89 S.Ct. 1794]; Weaver v. Jordan (1966) 64 Cal.2d 235, 242 [49 Cal.Rptr. 537, 411 P.2d 289].) A film is presumptively protected (People v. Superior Court (Freeman) (1975) 14 Cal.3d 82, 88 [120 Cal.Rptr. 697, 534 P.2d 393]), and will forfeit that protection only if it falls within "narrowly limited classes" of cases (Chaplinsky v. New [**458] [***356] Hampshire (1942) 315 U.S. 568, 571 [86 L.Ed. 1031, 1035, 62 S.Ct. 766]). Appellant contends that the Valentino film is not entitled to the cloak of constitutional protection because respondents incorporated Valentino's name and likeness in: (1) a work of fiction, (2) for financial gain, (3) knowing that such film falsely portrayed Valentino's life. The critical issue is whether the presence of these factors, individually or collectively, sufficiently outweighs any protection this expression would otherwise enjoy under the United States and California Constitutions. In emphasizing the fictional nature of the film, appellant's argument reveals a fundamental misconception of the nature of the constitutional [*866] guarantees of free expression. "The constitutional right of free expression . . . is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests." (Cohen v. California (1971) 403 U.S. 15, 24 [29 L.Ed.2d 284, 293, 91 S.Ct. 1780].) The First Amendment and article I, section 2 of the California Constitution serve "to preserve an uninhibited marketplace of ideas" and to repel efforts to limit the "'uninhibited, robust and wide-open' debate on public issues." (Red Lion Broadcasting Co. v. FCC, supra, 395 U.S. at p. 390 [23 L.Ed.2d at p. 389]; Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 340 [41 L.Ed.2d 789, 805, 94 S.Ct. 2997].) These rights are essential in a democratic system of government. Free speech is also guaranteed because of our fundamental respect for individual development and self-realization. The right to self-expression is inherent in any political system which respects individual dignity. n7 Each speaker must be free of government restraint regardless of the nature or manner of the views expressed unless there is a compelling reason to the contrary. (See Hill, Defamation and Privacy Under the First Amendment (1976) 76 Colum.L.Rev. 1205, 1208-1210.) - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - PAGE 46 25 Cal. 3d 860, *866; 603 P.2d 454, **458; 160 Cal. Rptr. 352, ***356; 5 Media L. Rep. 2208 FOCUS - n7 See Cohen v. California, supra, 403 U.S. at pages 24-26 [29 L.Ed.2d at pages 293-295]; Whitney v. California (1927) 274 U.S. 357, 375-376 [71 L.Ed. 1095, 1105-1106, 47 S.Ct. 641] (conc. opn. of Brandeis, J.). See generally, Tribe, American Constitutional Law (1978) pages 578-579; Nimmer, The Right
Page 1 and 2: 1ST CASE of Level 1 printed in FULL
Page 3 and 4: WHITE, J., filed an opinion concurr
Page 5 and 6: caused emotional distress that was
Page 7 and 8: motivated by hatred or ill-will his
Page 9 and 10: lawfully punish an individual for t
Page 11 and 12: is a vocal advocate for the prohibi
Page 13 and 14: Wyoming to the Central District of
Page 15 and 16: Finally, we note that New York has
Page 17 and 18: PAGE 16 867 F.2d 1188, *1195; 1989
Page 19 and 20: We also find fault with the second
Page 21 and 22: action for invasion of privacy. Oth
Page 23 and 24: they are not obscene. Cf Falwell, 1
Page 25 and 26: PAGE 23 867 F.2d 1188, *1200; 1989
Page 27 and 28: Ginger Rogers, under the Lanham Act
Page 29 and 30: . . . Fellini's film is an act of h
Page 31 and 32: non-moving party, summary judgment
Page 33 and 34: cf. Dallas Cowboys Cheerleaders, In
Page 35 and 36: The use of the associations with th
Page 37 and 38: 68 (quoting Central Hudson Gas & El
Page 39 and 40: with a matter of public interest, b
Page 41 and 42: as such, have enjoyed certain const
Page 43 and 44: plaintiff's claim because Zacchini'
Page 45 and 46: efusal to amend, the complaint was
Page 47: allegations therein, this court may
Page 51 and 52: 25 Cal. 3d 860, *867; 603 P.2d 454,
Page 53 and 54: N.Y.S.2d 218, 374 N.E.2d 129] (fict
Page 55 and 56: to "the facts." There is no pretens
Page 57 and 58: film was factual or fictional, no a
Page 59 and 60: 160 Cal. Rptr. 352, ***362; 5 Media
Page 61 and 62: JUDGES: Before POWELL, Associate Ju
Page 63 and 64: this determination, the judge is no
Page 65 and 66: F.2d 1005, 1007 (C.C.P.A. 1981). Th
Page 67 and 68: [**16] The district court unfortuna
Page 69 and 70: - - - - - - - - - - - - - - - - - -
Page 71 and 72: other factors support Anheuser-Busc
Page 73 and 74: The court begins its "different wor
Page 75 and 76: I respectfully dissent. PAGE 69 2ND
Page 77 and 78: The T-shirt portrays the three admi
Page 79 and 80: violated section 43(a) of the Lanha
Page 81 and 82: plaintiffs' favor. See Dallas Cowbo
Page 83 and 84: in this action that they have a val
Page 85 and 86: television series." Plaintiff's Mem
Page 87 and 88: concludes that the conceptual [*147
Page 89 and 90: The Court also notes that at the he
Page 91 and 92: since an injunction will prevent de
Page 93 and 94: success, portraying Superman in sev
Page 95 and 96: LEXSEE 222 U.S.P.Q. (BNA) 101 which
Page 97 and 98: During this "promo" the viewer sees
Page 99 and 100:
The basic issues concerning the cop
Page 101 and 102:
similarities and differences in the
Page 103 and 104:
promote creativity, but it places a
Page 105 and 106:
from the Superman saga or incorpora
Page 107 and 108:
motion is renewed, a trial court ha
Page 109 and 110:
source or sponsorship has been impl
Page 111 and 112:
PRIOR HISTORY: [**1] April 5, 1991,
Page 113 and 114:
significant respects, each Coach ba
Page 115 and 116:
expediting litigation. See Celotex
Page 117 and 118:
1217, 1221 (2d Cir. 1987). The plai
Page 119 and 120:
infringement of its registered hang
Page 121 and 122:
produce the handbag styles at issue
Page 123 and 124:
(1986). [**29] It most assuredly do
Page 125 and 126:
PAGE 116 7TH CASE of Level 1 printe
Page 127 and 128:
- - - - - - - - - - - - - - - - - -
Page 129 and 130:
Cir. 1980). Nevertheless, registrat
Page 131 and 132:
. . . . shall be liable in a civil
Page 133 and 134:
and appearance, differing only by o
Page 135 and 136:
order a Dead Dog T-shirt. n11 The s
Page 137 and 138:
America, Inc., 971 F.2d 1395, 1401
Page 139 and 140:
Mass. Gen. L. ch. 110B, @ 12. To pr
Page 141 and 142:
N.E.2d 149, 153 (1979) (To be actio
Page 143 and 144:
Plaintiffs Girl Scouts of the Unite
Page 145 and 146:
The purposes of the corporation sha
Page 147 and 148:
Scouts' mark for Pee Wee Harris now
Page 149 and 150:
and, third, the parties dispute whe
Page 151 and 152:
to consider the eight factors artic
Page 153 and 154:
definition, parody requires resembl
Page 155 and 156:
& Elec. v. Public Serv. Comm'n, 447
Page 157 and 158:
- - - - - - - - - - - - - - - - -En
Page 159 and 160:
that there is little similarity bet
Page 161 and 162:
n22 Plaintiffs and Defendants have
Page 163 and 164:
Because First Amendment considerati
Page 165 and 166:
they made a "general mention of sco
Page 167 and 168:
certainly does not contribute to ov
Page 169 and 170:
* * * For the foregoing reasons, De
Page 171 and 172:
Convenience Coop. Co., 922 F.2d 429
Page 173 and 174:
the other six factors tilts towards
Page 175 and 176:
In actions for trademark infringeme
Page 177 and 178:
UNITED STATES DISTRICT COURT FOR TH
Page 179 and 180:
HARD ROCK CAFE and Design shirts, j
Page 181 and 182:
image on the garment. Pacific Graph
Page 183 and 184:
Stipulated Facts, para. 28. Transfe
Page 185 and 186:
para. 38. 39. Ms. Hurd admitted tha
Page 187 and 188:
T-shirts. As to marketing channels,
Page 189 and 190:
mere humorous caricature of plainti
Page 191 and 192:
deliberately plagiarized make-up do
Page 193 and 194:
1989 U.S. Dist. LEXIS 11678, *2; 11
Page 195 and 196:
nonadvertising purposes, 30 A.L.R.3
Page 197 and 198:
Modern status of Federal Civil Proc
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Hustler v. Falwell.pdf - Mark Roesler

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