Entertainment Law Question #5?

Early in her career, Marvel posed for Artiste, a professional photographer. At the time, Marvel was paid $500 for her time and signed a release form which authorized Artiste to "license or otherwise use" photogrphhs of her "in any manner and for any purpose" he might choose, "including but not limited to magazine illustrations, calendars, and advertisements". After Marvel becomes a successful movie star, Artiste licensed the use of one of her photographs to a Park Avenue fur store which used it in magazine ads for the store. In the photograph, Marvel is nude, but the photo is not obscene and in fact, portrays her quite attractively. Marvel objects to the use of the photo because as an actress, she has refused to do nude scenes and because she is publicly active in an organization that opposes the use of animal furs for clothing. Marvel sues the photographer and the fur store. They respond by pleading the defense of waiver based on the written release. What is the likely outcome?

Here is my answer:

I believe that the outcome of the trial would end with a ruling in the favor of Monica Marvel. Had she just been an average, everyday citizen, the defendants would most likely have won the case on the basis that she had signed the release form, but Marvel is a public figure, a famous actress. Since Marvel鈥檚 likeness was being used to sell the fur coats, I believe that her consent would have needed to be obtained prior to putting her picture on the ad. The Park Avenue fur store bought the pictures from Artiste, but they failed to get Marvel鈥檚 permission to endorse their product.

Since Marvel is an animal right鈥檚 activist and the pictures portray her endorsing animal furs, she is losing control of her public image while someone else is profiting from her likeness. This calls into question Marvel鈥檚 right of publicity and if she can show that they are using her celebrity status for profit unfairly and injuring her character, she probably will win the case.

She has rights. If he just put those pictures out on posters she'd have NO rights at all. She'd have to buy back the rights. He could sell them to Playboy BUT they couldn't MAKE HER Playmate of the month. They'd need rights from her for that! They could use it in the Sex Stars of the Cinema issue.

Just how far her rights go, would be decided by a court. I feel confident she would win big time, possibly even getting her rights back, but then there would be a monteary exchange but a small one.

Now, understand IF YOU ARE A NOTHING, but say a good Christian Nothing who is out to be a model and you sign on the dotted lines and I make your picture a TAMPAX ad. You have NO RIGHTS. Your INTENT is to make a career as a model. I paid you and got FULL commercial rights.

Just because you're in a Tampax ad and your Family and Pastor have problems seeing you on the back cover of every woman magazine, doesn't give you new rights.

You could be a GOOD CATHOLIC and it would be an ad for CONDOMS. You lose.

If my release form says I can use it commerically, do advertsing tie-ins with no further payments, royalties or credit line and you sign and take a REASONABLE payment.

Undestand $1 is NOT a reasonable payment

It must be USUAL AND CUSTOMARY and $500 would be fine for clothed pictures. $1,000 might work for nude pictures.

YOUR only court avenue could be the FAIR AND JUST compesation part of the CONTRACT.

If I compesnated you fairly and reasonably and I could bring in 20 super models who said that 3 years ago they got paid LESS, you'd lose.

YOUR scenario, however, sets up the argument for CELEBRITY ENDORSEMENT ABUSE.

Once you are a CELEBRITY your LIFE and MORAL CHARACTER become your legal rights to protect.

BUT you must be able to show that they are USING your celebrity status for profit unfairly AND injuring your character.

If you are NOW a blonde and ONCE were burnette and looked vastly different and I was the photographer and I said to Tampax, hey I have a picture of Jessica Simpson I took when she was 18 and struggling, you can use it, but you can't use her name.

And they do it.

The run that TAMPAX ad with that OLD picture.

They might prevail, so long as they DON'T wave the flag.

The most anyone might do is say, hey that looks like Jessica Simpson a little. With brown hair, of course.

The defendants would prevail based solely on the terms of the written release. It would not matter that the plaintiff became famous afterwards and objected to the use to which the photos were put.

likely out come is that contract law will be upheld
marvel knew the significance of signing a contracted release and that she was not incompetent to sign a contract
offer acceptance and consideration