Right of Pug-licity
Piqued by a purloined pug pic, a blogger has told Fox News “that if you want to use a photo or some other content I’ve created on a national TV broadcast, YOU SHOULD ASK FIRST AND YOU NEED TO PAY ME FOR IT.” (You can go to the blogger’s site to see the pic; I’m afraid to re-post it here.) Commenting on the controversy, Andrew Ratner asks “Is everything on the Internet up for grabs?”
If that question’s about copyright law, the answer is probably no. Fox’s appropriation was pretty uncreative, and certainly wasn’t a commentary on the pug. Perhaps Fox will say that it utilized the supercute pug to comment on liberal canine indulgence (“a santa outfit for a pug–decadent!”). But the network hasn’t exactly been a friend of fair use, and may be loathe to make that argument in court.
I also want to ask: can a pug have a right of publicity–that is, the right to avoid being used commercially as an endorsement of a good or service? Greg Lastowka has let me know that Melville Nimmer has said the answer is “no” (Nimmer, The Right of Publicity, 19 Law & Contemp. Probs. 203 (1954)). Will the hegemony of Nimmer’s copyright treatise carry over into this area? Only time will tell.
I for one think that Nimmer was probably right about avoiding this expansion of IP. Note that Truman the Pug, the epicenter of the Fox controversy, is really only notable for the outfit that his owner put him in. Has Truman the Pug really crafted a persona that needs to be monetized? Would he, like his namesake, be put off by Fox’s politics or otherwise reluctant to lend his image to a commercial endeavor? Anthropomorphism has its limits. . . .though perhaps in contemporary America, people take their pets to be extensions of themselves. In that case, maybe Truman’s owner would be the one to assert the right of publicity. It’s been extended to persona, voice, likeness . . . pets may be the logical next step. The types of common-law privacy torts forbidding “appropriation” explored by Bill McGeveran and Dan Solove may also raise the thorny legal issue of whether a person’s pet is part of her persona.
Photo Credit: Creative-commons licensed pug from Orlando’s World of Photos. Note that there is a “creative commons licensed” santa pug in Flickr, though Fox’s use may have been too commercial to merit unauthorized use of it.