MC 4163 — FINAL EXAM STUDY GUIDE:

Appropriation

• APPROPRIATION (in general):
  • Know the background, definition, rules and defenses. Be able to correctly recognize and apply them in hypothetical situations.
     
    
  • What are the differences between appropriation as a right of privacy and as a right of publicity?
     
    
  • Are the names of businesses, corporations, schools and other "things" protected under appropriation?
     
    
  • Understand what constitutes a celebrity's likeness. Understand the use of catchphrases, nicknames, look-alikes, sound-alikes and voices without consent. How can disclaimers help advertisers who use unknown people who look or sound like celebrities?
    • Know the facts and rulings in these cases:
      • Midler v. Ford Motor Co. (9th Cir. 1988)
      • White v. Samsung Electronics of America, Inc. (9th Cir. 1992)
      • Cardtoons v. Major League Baseball Players Association (10th Cir. 1996)
      • In the "Three Stooges" case, what did the California Supreme Court mean by "transformative elements"? Which uses would be protected by the First Amendment? Which would not be protected?
  • What constitutes advertising and trade purposes?
     
    
  • Is news a defense? How do courts define news? Understand what has been deemed news.
     
    
  • What is the incidental use defense?
     
    
  • What is the Booth defense? What limitation is placed upon it?
     
    
  • Is the unauthorized use of a person's name or likeness in a political advertisement considered appropriation?
     
    
  • When won't consent be a defense?
     
    

• APPROPRIATION (in Oklahoma)
   
  

  • Does appropriation exist in Oklahoma under the common law?
     
    
  • Oklahoma's Appropriation Statutes:
    • Does Oklahoma statutorily recognizes appropriation as a right of privacy and as a right of publicity? If so, what are the differences?
       
      
    • Do Oklahoma's statutes protect against the use of a person's name, voice, signature, photograph, or likeness for advertising or trade purposes without consent?
      • If so, how has this been applied in Oklahoma?
      • What constitutes "readily identifiable" in a photograph?
      
       
      
    • What constitutes a commercial or advertising purpose?
      • Can a plaintiff sue merely because the name or likeness, etc. were used in material that is commerically sponsored or contains paid advertising? Why?
      • Under Oklahoma's statutes, what activities are exempted from claims of appropriation?
      • Are parody and satire protected in Oklahoma from claims of appropriation? Why?
        • Cardtoons v. Major League Baseball Players Association (10th Cir. 1996)
          • Why does parody have value?
          • What was the court's reasoning regarding the cards as humorous commentary, commercial merchandise and commercial speech?
          • What would happen if the players and other celebrities were given the power to control parodies of themselves? Why would that be undesirable?
          • Why did the Tenth Circuit disagree with the Ninth Circuit decision in White v. Samsung Electronics of America, Inc.?

    • Do Oklahoma's statutes create a property right that may be assigned or otherwise transferred before or after the person's death?
      • What criterion does Oklahoma's statute 12-1448 use to define "deceased personality"? In other words, what determines if a person's right of publicity survives his or her death under statutes 12-1448 and 12-1449?
      • Could the heirs of an unknown person whose name or likeness, etc. had no commercial value at the time of death still sue under statute 839.1-.3 for unauthorized use of that person's name or likeness after death?

    • What damages are allowed under Oklahoma's appropriation statutes?

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