Posted by Eugene Volokh:
Chelsea Clinton's Photo on Restaurant Wall:
http://volokh.com/archives/archive_2007_09_23-2007_09_29.shtml#1190916275
People have been talking about [1]this story:
The owner of a New York City restaurant is �heartbroken� over [2]a
letter he received from former President Bill Clinton's lawyer
asking that a photograph of daughter Chelsea be removed from his
eatery -� or face legal action.
The photo, taken of the former first daughter with Osso Buco owner
Nino Selimaj, has been on display in the window of the Greenwich
Village haunt for about five years, the restaurateur said. It was
snapped when Chelsea, now 27, was having dinner there with a group
of about 30 friends.
But Selimaj said he was shocked when he received a letter from
Clinton�s lawyer Douglas J. Band on Sept. 18 threatening legal
action if the photograph of �private citizen� Chelsea was not taken
down. The photograph is still on display near the front entrance of
the restaurant -� only now, the letter is posted alongside it.
�We ask that you immediately remove that picture and any and all
pictures displaying Ms. Clinton,� the letter warns. �We reserve the
right to exercise any and all options available to us if you refuse
to comply.� ...
Here's the quickie legal analysis:
1. The restaurant owner's actions likely violate Chelsea Clinton's
"right of publicity." This right is recognized in one or another form
by most states, but for our purposes the specific law is N.Y. Civil
Rights Law � 51, which gives any person the right to sue over
unauthorized use of her "name, portrait, picture or voice ... used
within this state for advertising purposes or for the purposes of
trade without ... written consent." Here, it looks like the photo is
being used for promoting the restaurant to its customers, which makes
it "purposes of trade" or perhaps even "advertising purposes."
2. Courts have generally held (and rightly so) that such rights of
publicity usually don't block the use of names and likeness in
newspaper articles, books, novels, movies, and the like, even though
such uses may be for profit and distributed in commerce; the right
tends to be limited, largely for First Amendment reasons, to
[3]advertising and merchandising (such as T-shirts, coffee mugs, and
the like). But a restaurant's decor probably qualifies as a form of
advertising or other "commercial speech" (a First Amendment term of
art that refers mostly to advertising and similar promotion, not to
speech such as a book or a newspaper that is sold in commerce). And
while such "commercial speech" is considerably protected by the First
Amendment, it's less protected than newspapers, books, and the like.
The right of publicity, as applied to such speech, is quite likely
constitutional.
3. All this is true, generally speaking, whether Chelsea is treated as
a public figure or a private on. That distinction is important for
libel cases, but generally not for right of publicity cases (though
the damages may differ depending on the market value of the
plaintiff's image).
4. As I noted above, New York law -- unlike the law in many other
states -- provides that consent to use one's name or likeness for
advertising or trade must be given in writing. This means that even if
Chelsea willingly posed for the picture, knowing that the restaurant
was taking it to be posted on the wall (far from clear), that's not
enough; for the restaurant's use to be legal, there has to be a
written permission from her.
5. The one possible defense the restaurant might have is the statute
of limitations: In New York, Chelsea would have to sue within one year
of learning that the restaurant was displaying the picture; I don't
know when that was. (My sense is that the statute would also start
running when a reasonable person would have learned that the picture
was being displayed -- but I suspect that under these facts it's not
likely that a reasonable person in Chelsea's shoes would have learned
of the picture before Chelsea actually did.)
6. Setting aside the legal question, my sense is that failing to
remove Chelsea's picture is pretty rude, and I hope the restaurant
owner's customers admonish him to that effect. A restaurant owner
should have more respect for the wishes of his patrons; he's gotten
five years of free publicity out of Chelsea's visit, and it doesn't
seem right to me for him to insist on getting more after Chelsea asks
-- for whatever reason -- that he stop. Conversely, if the first
request to the restaurant was the letter, rather than a polite request
by Chelsea (I have no idea whether that's so, though [4]Ann Althouse
suggests that it might have been), that too sounds a bit rude. On the
other hand, if a first request was politely rebuffed, I don't see
anything improper about the letter; it seems like a pretty normal
nastygram, and one that is reasonably warranted by the facts as they
appear.
References
1. http://www.foxnews.com/story/0,2933,298173,00.html
2. http://www.thesmokinggun.com/archive/years/2007/0926071ninos1.html
3. http://www.law.ucla.edu/volokh/publicity.pdf
4.
http://althouse.blogspot.com/2007/09/we-reserve-right-to-exercise-any-and.html
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