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An Ohio purveryor of novelty items put out a series of bobbing head dolls ("Bobbleheads") depicting caricatures of politicians. One of the politicians lampooned in the merchandise was the Governor of California, Arnold Schwarzenegger.

Exhibit "A":The Bobblehead: http://www.bosleybobbers.com/Merchant2/merchant.mvc?Screen=PROD&Product_Code=BB0054&Category_Code=01.

UPDATE: Whoops. Offending bobblehead removed because of lawsuit and settlement (see below)

The lawyers charged with protecting Arnie's "publicity rights", back when his image was a hot property in the entertainment world, sent a threatening letter to the manufacturers and distributors of the Bobblehead.

Exhibit "B":The Threatening Letter: http://www.thesmokinggun.com/archive/0430042arnold1.html.

UPDATE: Whoops. Offending letter removed. Lawsuit? (research underway) Can still be read in The Book. (see below)

The letter is interesting for two reasons. First, there is the claim that Mr. Schwarzenegger can still vigorously protect the exclusive right to commercially exploit his own name and likeness, now that he is governor of America's largest state. (Short answer: "Ha! As if.") Second, there is the claim, presented as boilerplate at the end of the threatening letter, that the letter itself is "copyrighted" and cannot be posted on the Internet.

Exhibit "C": The "Book": Sue Me, Asshole: http://www.slumdance.com/fair_use_press/sue_me_asshole/free/

The guys at "Fair Use Press" (their motto: "Comment, criticism, parody. It's all good.") somehow got wind of the letter and viewed it as a challenge. They promptly returned the challenge by enclosing the entirety of the letter in an e-book entitled Sue Me, Asshole. The book's cover features a young, nude and buff Schwarznegger, strategically photoshopped(™) to contrast his big, big muscles with his little, tiny penis. The book can be obtained in a lo-res version for free, or if you donate a dollar you get a full color high resolution version of both the cover and the threatening letter.

The Governor's "Right of Publicity"

If Arnold Schwarznegger were still just an actor, there is no question that he could claim exclusive rights to commercially exploit his name, photograph, and likeness. Vanna White can claim a right to a vague likeness of herself, and George Wendt and John Ratzenburger, the actors who played "Norm" and "Cliff" on Cheers, have successfully sued for the misappropriation of their characters by animatronic robots. See Wendt v. Host International

Arnold, however, is no longer merely an actor. He is a politican, and his "Bobblehead" was issued in a series of Bobbleheads of politicians. Thus, not only is he fair game for parody (in the manner allowed against Jerry Falwell in Falwell v. Hustler Magazine case) but depicting him in a business suit with an automatic rifle must be interpreted as a political expression, protected by the First Amendment.

This is so blazingly obvious that, had the Governor's attorneys dared to put these assertions in a pleading filed in court, they would probably receive sanctions for frivolous litigation, in the form of an award of attorney's fees to the defendant.

UPDATE: The Gov's attorney's deed indeed, on April 30, 2004, file a complaint in Los Angeles County Superior Court reiterating the "right of publicity" claim in Mr. Singer's threatening letter. The case is Oak Productions v. Ohio Discount Merchandise, SC081563. We'll see if a judge thinks, as I do, that political speech obviously trumps the "right of publicity".

UPDATED UPDATE: August 3, 2004: Ohio Discount Merchandise entered into a settlement agreement with Mr. Swarzenegger's company, whereby they could keep selling Bobbleheads of Arnie, if they remove the assault rifle from the caricature.

A copyright in private correspondence?

The Governor's attack terrier ends his threatening letter with a choice piece of legal boilerplate which certainly caught my attention for its enormous arrogance:

This is a confidential legal notice and may not be published, in whole or in part. Any republishing or dissemination of same, including but not limited to posting the contents hereof on the Internet, shall constitute copyright infringement and will subject the re-publisher(s) to civil liability for such actions.

I have no quarrel with Mr. Singer's copyright claim. He didn't even have to put the © symbol on every page, though I suppose it reveals his intent to someday commercially exploit his correspondence.

I must say, though, wasn't aware that there was a market for this lawyer-tripe. Will people pay for nonsense laced liberally with legalese like "hereof", for annoying phraseology like "including but not limited to", for the stubborn ambiguity of the "(s)" in "re-publisher(s)", for puerile redundancies like "outrageous, malicious and tortious", or artifacts of archaic pleading styles from the days when it was necessary to talk in both Anglo-Saxon and Norman French (to wit: "cease and desist")? Does the traditional signoff of the legal blow hard --"Please govern yourself accordingly"-- induce literary orgasm in readers with a lawyer fetish?

Be that as it may, I must concede that if Martin Singer someday wishes to publish his wit and wisdom ("The Memoirs of a Hollywood Attack Dog"?) this letter would surely figure prominently in the chapter where he describes how he became an Internet laughing stock.

He does, however, have a valid claim of copyright to his letter. There's no question that private correspondence can be copyrighted. The act of sending it to another person constitutes "publishing": it is the legal equivalent of collecting the letter in a book and printing it. Publishing, in this sense, doesn't harm the claim of copyright; it does not transfer the rights to the letter to the recipient, nor put the letter in the public domain.

More dubious, however, is Mr. Singer's assertion that publishing his letter on the Internet would constitute infringement. Clearly, his letter is posted on the 'tarweb for everyone to laugh at: that is, for the purpose of criticism. This is a valid "fair use". The posting of Mr. Singer's letter is unlikely to impede Mr. Singer's commercial exploitation of his letter. Like 2 Live Crew's parody of Roy Orbison's "Oh, Pretty Woman", in the case on Campbell v. Acuff-Rose, which held that the rap parody was unlikely to reduce the marketability of the pop staple, posting the letter is unlikely to reduce the market for it. To the contrary, posting the letter arguably gave the letter whatever limited market value it has.

Still, getting sued is no joke. That's why guys like Singer get away with this extortionate bullshit.

Sue Me?

The "Sue Me Asshole" guys have guts. Abusive copyrights suits can be a bitch. One egregious example is Religious Technology Center v. Arnaldo Lerma. "Religious Technology Center" is the entity which purportedly holds the copyright on L. Ron Hubbard's Scientology writings. Lerma, a former Scientologist, had published some of the cult's most secret (and most silly) documents on the Internet. Scientology claims its documents are copyrighted, which in the cult's twisted thinking means they can keep them secret.

When the Framers of the Constitution included Copyright legislation among Congress' powers, it was to encourage the arts and promote the dissemination of knowledge, not to allow bizarre cults to conceal their embarrassing beliefs, or to allow lawyers to conceal the practice of extortion. The broad range given by Congress and the court to copyright, however, in the service of the corporations which feed at the trough of human creativity, has rendered copyright law a vague mess. Sustaining the defense of fair criticism and reporting, even with the implicit support of a strong theory of free expression based on the First Amendment is a difficult and expensive task.

In August 1995, Scientology lawyers backed by federal marshals and supposedly authorized by federal warrants raided Lerma's home and seized his computers and files. The federal court soon made Scientology give back everything it had seized in the "raid", but eventually did grant a judgment against Lerma for copyright infringement, for nominal statutory damages in the sum of $2,500.00. This was a mere pittance compared to the $1.2 million in attorney's fees which Scientology invested in the case, according to its own fee petition, and also a drop in the bucket compared to the massive attorney's fees awarded to the Washington Post for dragging the newspaper into Scientology's campaign against Lerma. Still, Lerma ran out of money and had to defend himself toward the end. Very inconvenient, to say the least.

I doubt the Governor of California is willing to let loose on the Bobblehead guys, but I wonder if Marty Singer, his LA attack schnauzer, has the cojones to put his own money where his big fat lawyer-like mouth is, and try to enforce the copyright on his shitty letter? Doubt it; but stay tuned.

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