INTRODUCTION

Fans just cannot seem to get enough of their favorite celebrities. The obsession with television, movie, and sports stars has led to an intense demand for photos and scoops, as well as causing celebrity paychecks to soar. We will see anything or buy anything that is associated with our favorite celebrities. The marketing of a famous image is a serious business, especially in Hollywood, involving multi-million dollar deals.

At a time when people across the world seem to be reevaluating the costs associated with worshipping the rich and famous, the Internet is providing an unprecedented platform for all to pay their respects to their idols. Fan Web sites pervade the World Wide Web, and a search of today's hottest stars will find thousands of Web pages. Just when you thought you could not get enough of Leonardo DiCaprio, there are an estimated 500 web sites that allow you to see that face or read about his rise to stardom.(1) And it does not appear as though the Web is going away anytime soon, in fact, you can now surf on your sofa. Web TV and other Internet Service Providers bring the Internet to your television set.(2)

As Web TV matures and the goal of complete integration between television shows and the Web is realized, the possibilities for creating new and exciting Web sites seems endless. What does all of this mean to celebrities? The potential for overexposure is definitely there, and the possibility of a use that would offend the star is there as well. In a world where endorsements and movie deals create millionaires by the limo-full, the Internet and the future of Web TV are serious concerns.

Whether or not celebrities have any legal recourse against uses of their names and photos on the Internet is an emerging issue in the law and one that has received little attention from the courts thus far. The right of publicity is the privilege every person has to control the commercial exploitation of one's image.(3) This is an exclusive right that applies to exploitation in any medium.(4) The law as it stands today is applicable to uses on the Internet and the Web, and may in some instances provide relief for a celebrity. However, this wholly unique medium provides challenges that the law may not be ready to handle. For instance, fan Web sites, arguably the most common uses of stars' names and images, often are not paid for publishing these materials.

As the Internet provides a greater outlet for the exploitation of celebrity images, the legal community must carefully examine the consequences of the application of the right of publicity to fan Web sites in particular. A particular use may seem harmless enough in the current format of the Internet; however, as technology advances in leaps and bounds, a case of no liability may be applied to a similar use that is actually a serious threat to a performer's ability to control his or her image. Therefore, it is important that the public policy reasons behind the development of the right of publicity be considered when applying the law to the Internet.

Part I of this Article discusses the Statutory and Common Law Right of Publicity in California. The section focuses on the required elements and the guidelines for those elements provided by California case law. The statutory exceptions and implications of the First Amendment right to free speech are also outlined. Part II focuses on the application of the law to fan created Web sites. This section first examines the current look of fan Web sites and whether or not they infringe on a celebrity's right of publicity, and then proposes future uses that are expected given emerging technologies. The central issue discussed is what constitutes a use for a "commercial purpose" that would be prohibited. Finally, Part III presents the public policy arguments underlying the right of publicity and applies them to the outcomes predicted in Part II. This section analyzes the potential risks of exempting some current uses of celebrity images and identities on fan Web sites. The paper concludes that because the future of the Net poses a serious threat to a celebrity's ability to control the use of his or her image, the protection of the right of publicity must be carefully applied today to prevent unfair legal outcomes in the future.

PART I. THE RIGHT OF PUBLICITY IN CALIFORNIA

A. Statutory And Common Law Protection

The right of publicity is a legal principle that takes a variety of forms. Its roots lie in the right of privacy and it exists in the federal law and in the statutes and/or common law of every state.(5) In general, the right of publicity protects the right every person enjoys to use or let others use his or her own name, likeness, and other identifying characteristics for commercial purposes.(6)

This Article will focus on the right of publicity in California. Although this is a right belonging to all persons, misappropriation is most often alleged by a celebrity or against a television or film production company. As a result of this connection with the entertainment industry, a large body of case law has developed applying California law of the right of publicity, and many other state and federal courts have looked to California and the Ninth Circuit Court of Appeals for guidance.(7) Therefore, limiting this analysis to California law does not prevent the application of its arguments to cases decided in other states.(8)

California offers statutory and common law protection of the right of publicity.(9) California Civil Code Section 3344(a) provides:

Any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent, shall be liable for any damages sustained by the person or persons injured as a result thereof.(10)

The statute also defines "photograph" in Section 3344(b) as "any photograph or photographic reproduction, still or moving, or any videotape or live television transmission, of any person, such that the person is readily identifiable."(11) For purposes of the statute, only a person's actual voice is protected from unauthorized commercial use. The Ninth Circuit Court of Appeals in Midler v. Ford Motor Co.(12) held that a sound-alike is not considered a "voice" or "likeness" under Section 3344.(13) Therefore an unapproved use of a celebrity sound-alike does not violate the right of publicity under Section 3344. The Midler court also stated a likeness must be a "visual image not a vocal imitation."(14) In White v. Samsung Electronics(15), the Ninth Circuit provided further guidance on what constitutes a "likeness" for purposes of Section 3344. In White, the court held that a robot dressed in a blonde wig, a gown, and jewelry did not constitute a "likeness" of the plaintiff, but the court intimated that a "manikin [sic] molded to White's precise features" might.(16)

Not just any use of an individual's name, likeness, etc. triggers statutory protection. The language of Section 3344 has been interpreted as requiring a use for a "commercial purpose."(17) However, Section 3344(e) specifies that use in a commercial medium that is commercially sponsored or contains paid advertising is insufficient in and of itself to constitute a "commercial purpose."(18) Rather, a "direct connection" is required between the use and the commercial purpose.(19) This requirement need not be "suggestive of an indorsement [sic] or association with the injured person."(20) Finally, the statute only imposes liability on a knowing use without consent.

The right of publicity is also protected by the California common law Tort of Misappropriation. The elements that must be alleged under the common law cause of action are: "1) the defendant's use of the plaintiff's identity; 2) the appropriation of plaintiff's name or likeness to defendant's advantage, commercially or otherwise; 3) lack of consent; and 4) resulting injury."(21)

Where it limited the terms "voice" and "likeness" under statutory law in Midler and White, respectively, the Ninth Circuit used the facts of those two cases to provide more expansive protection of a person's "identity" under the common law right of publicity. The adorned robot in White was held to be an appropriation of the plaintiff's "identity" because the individual aspects used by the defendant when "viewed together...leave little doubt about the celebrity the ad is meant to depict."(22) The court was clear about its opinion that the common law right of publicity is not as restrictive in the uses prohibited as the statutory right.(23) In addition, unlike the outcome under Section 3344, the plaintiff in Midler had a right to prevent use of a sound-alike under the common law.(24)

The language of the common law right of publicity also suggests a greater variety of uses are actionable. As opposed to the "commercial purpose" requirement of Section 3344, the rule set forth by the court in Eastwood v. Superior Court,(25) and later adopted by the Ninth Circuit in White and Midler, prevents a use which bestows defendant with an advantage, commercial or otherwise.(26) However, the Ninth Circuit has set forth a factual situation that does not constitute a commercial purpose, arguably creating a floor. In Newton v. Thomason , the court held that a "commercial purpose means more than merely using a person's name as part of a cast of characters in a television program advertisement that highlights the program's general plot."(27) The Newton court suggested that this standard applied to both the California common law and statutory right of publicity.(28)

B. Limitations On The Right Of Publicity

An individual is not allowed to quash uses of his or her likeness or identity with complete discretion. Section 3344 provides explicit exemptions to the statutory right of publicity.(29) Section 3344(d) eliminates liability for uses "in connection with any news, public affairs, or sports broadcast or account, or any political campaign."(30) The news and public affairs exception makes permissible a broad range of unauthorized uses. The First Amendment also provides protection for the dissemination of news by guaranteeing freedom of the press. Constitutional constraints on the right of publicity will be discussed below because they impact both the statutory and common law rights.

In Dora v. Frontline Video, Inc., a California Court of Appeals held that "public affairs" must be related to real-life occurrences, however, the court presumed that public affairs could be something less important than news.(31) In addition, the Dora court refused to limit "public affairs" to topics covered on public television and public radio.(32) Among uses that fall within the news and public affairs exception to Section 3344, the California court of Appeals has found no liability for a documentary about local surfing legends(33), and a U.S. District Court exempted use in a "news" program which sensationalized real-life events.(34)

As previously mentioned, the First Amendment severely limits the right of publicity by the constitutional guarantees of free speech and freedom of the press. The determination of whether a person's right of publicity is superseded by the First Amendment is made by balancing the competing interests of a person's ability to control the exploitation of one's personality with the public's right to receive and disseminate information.(35) In general, under the First Amendment, the expression of matters in the public interest cannot be restricted by the right of publicity.(36) Subjects that fall within the purview of the public interest are current events, "reproduction of past events, travelogues, and biographies."(37) In particular, there is public interest in people whose accomplishments or style of living draw attention to their activities.(38) Whether the purpose is to inform or entertain does not affect the determination that a subject is in the public interest.(39) Additionally, works of fiction and motion pictures(40) receive the same constitutional protection under free speech and free press.(41) The central issue in the First Amendment inquiry is the use of the individual's likeness or identity. Uses that are informative and cultural are not subject to liability; however, "if it serves no such function but merely exploits the individual portrayed, immunity will not be granted."(42)

A final limitation to the right of publicity is preemption by federal copyright law.(43) The requirements for preemption are: "first, the subject of the claim must be a work fixed in a tangible medium of expression and come within the subject matter or scope of copyright protection as described in sections 102 and 103 of 17 United States Code, and second, the right asserted under state law must be equivalent to the exclusive rights contained in section 106."(44) If a plaintiff merely seeks to prevent the exhibition of a copyrighted work, such a claim is equivalent to the exclusive protection of copyright law, and therefore, a right of publicity claim is preempted.(45) However, an unauthorized recording of a performance is not considered "fixed" for purposes of copyright law(46) and a voice is not copyrightable(47), therefore, a claim involving either of these elements is not preempted even though they are within a copyrighted work.

PART II - FAN WEB SITES AND THE RIGHT OF PUBLICITY

A. The Current Uses Of Celebrity Images On Fan Web Sites

1. The Current Look of Fan Sites

The Internet is a form of communication unlike any other. Its uniqueness stems from providing any individual with access to the Internet the ability to send and retrieve vast amounts of information through a global computer network. The appropriately titled World Wide Web (the Web) allows Net users the greatest opportunity for expressing ideas and opinions creatively and with the possibility of reaching millions of people throughout the world.(48) A Web page, or Web site, is the most common format used to present information on the Web. A site can contain text, photos, graphics, animation, video and audio files, as well as "links" to other Web sites.

A favorite subject on Web sites is celebrities, whether they are in the television, film, music or sports industry. In particular, fans create the majority of Web sites paying homage to today's most popular stars. Most of these fan sites are not run for profit in that they are published at the expense of the creator without any source of revenues tied to the Web site. It is these sites that this Article will focus on.

Fan Web sites come in a wide variety of styles, shapes, and formats. Nearly all contain at least one photo of the celebrity or celebrities the author is honoring. However, most contain "galleries" of photos that are stills from movies or TV shows, magazine photos, and some even share pictures of stars taken by the authors themselves. Biographical information is also commonly found on these Web sites. Such biographies include stories about a celebrity's childhood or life before becoming famous as well as a virtual resume of their careers in entertainment or sports. Other popular topics found on fan sites are gossip, fan mail, reviews, and links to related Web sites.(49)

2. Legal Analysis of Fan Sites and the Right of Publicity

As of this writing, no court has published an opinion on whether the use of celebrity names or images on the Internet violates the California right of publicity.(50) However, existing case law dealing with print and broadcast media can be applied to this new medium of communication.

Aside from including celebrities' names, fan Web sites may contain scanned photos or still video images, autographs, sound bites, video clips, or drawings of the famous individuals. Each of these constitute the use of a celebrity's "name, voice, signature, photograph, or likeness" necessary under Section 3344.(51) In addition, each would qualify as the use of one's identity, which includes at least one's name and likeness, for purposes of the common law right of publicity. A wrinkle in this analysis arises where a talented fan impersonates a celebrity's voice. Such a scenario is excluded from liability under the statute that only protects the use of the plaintiff's actual voice and not a sound-alike.(52) Whether or not an impersonation of a celebrity's voice is considered the use of one's identity under the common law depends upon satisfaction of the standard set forth by the Ninth Circuit in Midler.(53) Voice misappropriation requires deliberate imitation of a person's voice, not just his or her style, and a finding that the imitated person's voice is "sufficiently distinctive and widely known to give him a protectable right in its use."(54)

The difficult question in this analysis is whether a use of a celebrity's likeness or identity on a fan Web site is a use for a "commercial purpose." Further complicating the issue of "commercial purpose" is that the common law seemingly imposes a less rigid requirement. The common law standard imposes liability if a use provides the defendant with an advantage, commercial or otherwise.(55) However, whether courts have interpreted this phrase to mean that something less than a commercial use will result in liability is far from clear.(56) As many courts have done, it is often easier to first determine if the use falls within one of the statutory or First Amendment exceptions.(57)

California courts have ruled that there is a public interest in the "doings, affairs or character" of actors.(58) Thus, under the First Amendment, an actor's name, likeness, etc. may be used in connection with the dissemination of those issues without the actor's consent. The news exception, provided under the statute and First Amendment, is considered equivalent to the public interest protection.(59) Reporting of current events is also included within the meaning of news and items of public interest. Therefore, fan Web sites containing biographical information, movie reviews, celebrity sightings, even gossip will be exempt from liability because they are issues in the public interest.(60)

Whether or not a fan Web site contained a sponsor or paid advertisements would not affect the results under the public interest exception. This consideration is consistent with the treatment of news shows or magazines that generate advertising revenues. As long as there is no "direct connection" between the advertisements and the use of the celebrity's name or photo, there is no liability for an unauthorized use.(61) For example, a photograph of a celebrity within a banner at the top of a Website with a caption stating "This is my favorite Web site" is a use that has a direct connection between the photo and the ad. However, a photo of a celebrity used to promote a Web site about that celebrity would not constitute a direct connection.

Even a fan Web site containing a fictionalized account of a celebrity's life would receive First Amendment protection because works of fiction are protected by the Constitution in the same manner as news stories. However, on the issue of fiction, there is a scenario that might not provide the fan/publisher with Constitutional or statutory protection -- the use of a celebrity's name or likeness in connection with the publishing of fan fiction on-line.

Fan fiction is a form of creative work that has its basis in a copyrighted work.(62) Most often writers of fan fiction build new stories from characters and stories that are a part of popular culture, including television series, movies, comic book heroes, etc.(63) Many Web sites devoted to fan fiction include photos of the characters from the television series or movies on which the stories are based.(64)

Although the First Amendment protects works of fiction, the cases applying this exception have all involved the use of a celebrity's name and likeness in a fictionalized account of that celebrity's life or some event involving that particular celebrity.(65) And clearly the First Amendment does not shield all works of fiction from liability under copyright law, in fact, there is much debate over whether fan fiction constitutes copyright infringement.(66) Therefore, the guarantee of free speech is not so broad as to prevent a right of publicity claim where the work of fiction is using the celebrity's identity but not in connection with that celebrity's life.

The Web site publisher may offer as a defense that the right of publicity claim is preempted by federal copyright law because the celebrity is only attempting to prevent the exhibition of a copyrighted photo. Therefore, the defendant would argue that only the owner of the copyrighted image has a claim for liability. This is potentially a valid defense. On the other hand, the plaintiff would argue that under Wendt v. Host International, Inc., "an actor or actress does not lose the right to control the commercial exploitation of his or her likeness by portraying a fictional character."(67) In Wendt, animatronic robots, allegedly based on plaintiffs' likenesses, were placed in airport bars created to look like the set of "Cheers," a popular television series.(68) The Ninth Circuit found that the right of publicity claim by two actors from the television series was not preempted by federal copyright law.(69) However, in Fleet v. CBS, Inc., a California District Court ruled that two actors who had consented to being filmed for a motion picture could not then allege a violation of the right of publicity to prevent the film's distribution by the owner of the copyright.(70) The Fleet court found that preemption occurred because the performances were copyrightable and the claim under state law, seeking to prevent distribution, was equivalent to the exclusive rights under federal copyright law.(71)

In the situation of the use of photos on fan fiction Web sites, although the actor authorized the photos to be taken, such consent was not given for their use on fan Web sites. However, it appears from the case law that the elements for preemption would be satisfied. These photos are authorized to be taken by the celebrity and therefore copyrightable, and preventing their use under state law is equivalent to the rights granted by copyright law. The right to prevent the display of these photos on fan fiction Web sites rests with the holder of the copyright, most likely the production studio or television network. Thus, any claims by the actor for violation of the right of publicity are preempted.(72)

Under the current technological capabilities of fans and the Internet, uses of celebrity names and images on the Internet do not violate the right of publicity because they fall under an exception provided by statute or the First Amendment or they are preempted by Federal copyright law. Therefore, it is arguably unnecessary to discuss whether such uses on the Internet constitute a "commercial purpose."

B. Net TV And The Future Of The Right Of Publicity

1. The Present Incarnation of Net TV and Its Future

The fact that 60 percent of U.S. households still lack a personal computer was not overlooked by Internet service providers (ISPs).(73) To reach this untapped market, the ISPs realized they would have to bring the Web to these individuals, through their television sets. This industry began in 1997, and Microsoft's WebTV has been the biggest force in this market.(74)

Currently, to access the Internet through one's television set requires purchasing a "box" much like a cable box. Most models do not contain a hard drive, so no capability of storing or downloading information exists. Keyboards are optional and there is no mouse for "clicking" on icons. All of these factors make Net TV difficult to navigate and its process time very slow. And without any features to enhance the Internet experience it is a poor alternative to those who own computers.(75)

However, the ISPs recognize that PC owners are not their intended market. In fact, they are trying to reach the passive television audience, who unlike PC users do not want a truly interactive experience.(76)

To overcome the initial lukewarm response by consumers, several new features added to Net TV are aimed at greater integration of the Internet with television viewing, and the goal for the future is total integration.(77) WebTV Plus, Microsoft's high end model, offers a hard drive and e-mail capability.(78) One of the biggest drawbacks to initial versions of Net TV was that it could only be viewed by switching to a different antenna on the television set.(79) Using a 3D page-turning effects, WebTV Plus can quickly switch back and forth between the Internet and television programming, and furthermore, it offers picture-in-picture for simultaneous viewing.(80) Using the vertical blanking interval (VBI), the broadcast signal used to transmit closed-captioning, the software in WebTV Plus detects URL's embedded in video signals then displays links to Web sites related to the program being viewed.(81)

On the horizon, ISPs are working with the television and cable industry to produce cable boxes and television sets containing modems for ready Internet access.(82) It is estimated that by the year 2000, sources other than the PC will provide 16% of Internet access, with the television being the leading non-PC access device.(83) The integration of the Web with entertainment is inevitable. Within the next couple of years, video modem technology will allow real time viewing of TV quality video over the Internet.(84)

With all of this money and technology working to make the Internet experience more like watching TV, it is likely that they will achieve their goal. And with growing criticisms of television programming as lacking creativity, it is likely that viewers will tune into the Net for something new. It is at that point that entertainment programming is as likely to come from a big Hollywood studio as from a real-life Wayne and Garth(85) using a video camera and the Internet.

2. Legal Analysis of the Future of Fan Sites and the Right of Publicity

As mentioned above, the current format of Net TV is nearly similar to the PC version. Therefore, the legal analysis of the right of publicity and fan Web sites previously discussed is the same for Net TV.

However, the future vision for total integration of the Web and television programming presents a formidable challenge for the California right of publicity statute and common law. The use of video on the Internet will become more pervasive, and along with that, the use of video clips from movies and television shows containing celebrity performances will replace still images. It is true that the production studios and networks that own the rights to exhibit the film will no doubt act first to prevent such uses or sue for damages. As occurred with sound clips found on fan Web sites in the past, a torrent of cease and desist orders is likely to follow. Most likely, this will stymie most of these uses, and in fact an actor, by virtue of his contract with the studio or network, gives up the right to damages for such an infringement.

Again, the same exceptions to the right of publicity provided by statute and the First Amendment will apply to the new Web sites. Any uses in connection with news, the public interest and public affairs will be protected.(86) And since entertainment and fiction also receive First Amendment protection, many uses will continue to be exempt.

A potential violation of the right of publicity might arise, again, in connection with fan fiction. As these creative individuals become more Internet savvy and have more advanced, affordable technology at their disposal, the possibility of a fan producing a new episode of a favorite series or a sequel to the latest blockbuster is more and more likely. With digital imaging technology, this episode or sequel could "star" the original characters.(87)

In determining whether or not these uses receive First Amendment protection as artistic expression, a court will weigh the property interest of the performer against the nature of the defendant's use.(88) If little creative value has been added by the Web site publisher, the use will not be protected under the First Amendment.(89) Because the performer himself is capable of giving, and most likely has given, the same performance, there is little creative value added by the publisher, Therefore, the publisher should not be protected from liability under the Constitution.(90)

A finding of a violation of the right of publicity then rests on the issue of "commercial purpose." Section 3344 restricts an unauthorized use "in any manner, on or in products, merchandise, or goods."(91) The critical question under the statute is whether a video on the Internet constitutes a product, merchandise or good. The right of publicity statute covering post-mortem rights is Civil Code Section 990. Both 3344 and 990 prohibit identical unauthorized uses. However, Section 990(n)(1) exempts uses in a "play, book, magazine, newspaper, musical composition, film, radio, or television program." If these uses were not considered products, merchandise, or goods, there would be no need to explicitly exempt them. Therefore, for purposes of Section 3344, they must be products, merchandise, or goods as well.(92) Further support for this proposition was provided by the Supreme Court. As the Supreme Court recognized in Zacchini v. Scripps-Howard Broadcasting Co., the strongest case for a violation of the right of publicity is "not the appropriation of an entertainer's reputation to enhance the attractiveness of a commercial product, but the appropriation of the very activity by which the entertainer acquired his reputation in the first place."(93)

As previously stated, most Web sites do not carry advertisements and are not published for a profit. Whether a profit motive is essential to finding an unpermitted use is unclear. The Supreme Court in Burstyn v. Wilson(94) held that the presence of a profit motive behind the production and distribution of motion pictures does not eliminate their First Amendment protection.(95) Although the lack of First Amendment protection does not necessarily trigger a prohibited use under the right of publicity, it stands to reason that the lack of a profit motive does not automatically insure First Amendment protection that would not otherwise exist. No case law currently exists on whether lack of a profit motive necessarily exempts a use from a right of publicity violation under Section 3344.

The language of the common law right of publicity, a use to the defendant's advantage, commercial or otherwise, seems to suggest that profit motivation is not a required factor. Attracting Web surfers to one's site because of the presence of a popular celebrity's image provides a Web publisher with an advantage over those sites without such images. In addition, such a use would injure that particular celebrity whose image would not be as valuable. If television viewers or Web surfers can see the celebrity in several different places, possibly portraying the same character, the exclusivity that production studios were willing to pay such high prices for no longer exists.

A defense of copyright preemption would not be successful under the circumstances of digital imaging. An actor in this case has not consented to the digitalization of his image or voice, nor to their presentation in this film. Because unauthorized recordings are not copyrightable, such a claim would not be preempted by copyright law.

Despite uses that could potentially damage a celebrity's ability to control the use of his name and likeness, it is possible that under strict application of California case law, the injured party could not prevent such uses. What exactly constitutes a "commercial purpose" and whether that differs from the common law standard of providing the defendant with an "advantage" is unclear from current California case law. With the unique nature of the Internet posing greater and greater challenges to this issue, it will require a careful examination of the public policy interests underlying the right of publicity to answer this question.

PART III - PUBLIC POLICY CONSIDERATIONS FOR DEALING WITH CHANGING TECHNOLOGY AND THE FUTURE OF THE WEB

The public policy rationales underlying the right of publicity are the labor theory, the prevention of unjust enrichment, and the economic incentives theory.(986) Although they may be inconsistent with past court decisions, they can be helpful in evaluating whether the statutory and common law are achieving the desired goals and assist in shaping the future of the right of publicity.

The labor theory and the prevention of unjust enrichment focus on a person's right to "reap what one sows" and prevent others from "reaping what one has not sown."(97) These theories support the idea that a person is entitled to the fruit of his labors, and others should not benefit unjustly for what another has worked for.(98) With respect to the right of publicity, the theories suggest that performers have expended their time, energy, and labor into creating value in their name and image.(99) Further, the performer has the right to gain the benefit of that value and others do not.(100) The fact that celebrity status is occasionally achieved by shear luck should not change the applicability of the theories to the right of publicity. The majority of performers that work to hone their craft and build a reputable career should not be stripped of their ability to control the use of their identity merely because a few have achieved the same status with no talent or little effort.

The economic incentives theory naturally follows from the labor theory. Under the economic incentives theory, one will not invest in learning a skill or craft if economic incentives do not exist from doing so.(101) In other words, if one cannot "reap what one has sown," one will not invest in the skills to sow in the first place. In the context of the right of publicity, this theory suggests that individuals will not invest in becoming performers if they will not be adequately compensated for doing so.(102) If Web publishers are allowed to appropriate digital images of actors for their own use, it will become more economical to "create" the actors then hire them, thus severely reducing the fees performers are able to garner.

Whether a Web publisher is motivated by profits does not affect the applicability of the above rationales for the right of publicity. It is the most dedicated, zealous fans that devote substantial amounts of time and energy into creating the most spectacular Web sites. It is not money that drives their creativity, yet they can develop the most creative Web sites around. If we will restrict a use by an entity that seeks to profit from using a "synthespian," why should a fan be free from liability. With the explosion of Internet access capabilities, fan sites stand to be just as threatening to the employability of performers as corporate sponsored sites or TV and film production companies.

Probably the most compelling counter argument against imposition or expansion of the right of publicity is deals with the limitations created on reinterpretation of personas. The critics of the right of publicity argue that by "allowing celebrities to control the meanings of their constructed personas deprives us all of the ability to 'recode' or reinterpret these texts for our own personal expression."(103) An example is the gay community's adoption of Judy Garland's image as a means of self-expression.(104) However valid this point may be, in every restriction of speech, someone's interests must be denied in favor of another's. It is the careful weighing of competing interests that is done by the courts. Although self-expression is an important interest, such expression is not thoroughly eliminated by limitations imposed by the right of publicity. The policy rationales favoring publicity rights, therefore, outweigh the restrictions placed on expression.

CONCLUSION

The Internet presents endless possibilities for the creative expression of ideas. Although the First Amendment seeks to protect an individual's right to self-expression, the law recognizes that limitations on that right are necessary to protect the economic interests of others. The right of publicity is such a protection in that its intent is to prevent the use of another person's name or likeness for one's own benefit.

Fan Web sites may not pose an economic threat to the livelihood of performers today, however, continually evolving technology is creating the possibility of direct competition between the Internet and television. As a result, the likelihood of a "Synthespian" replacing the "organic" version is becoming a reality. Without using public policy rationales to shape the interpretation of the "commercial purpose" requirement of the right of publicity, legal outcomes that will negatively impact the careers of countless individuals are also a reality.

ENDNOTES

(1) The 1999 Hollywood Portfolio, Vanity Fair, Apr. 1999, at 323, 376.

(2) Eric Brown, Interactive TV: The Sequel, New Media, Feb. 10, 1998, at 37.

(3) Michael Madow, Private Ownership of Public Image: Popular Culture and Publicity Rights, 81 Calif. L. Rev. 125 (1993).

(4) White v. Samsung Electronics America, 971 F.2d 1395, 1398 (9th Cir. 1992). "The right of publicity does not require that appropriations of identity be accomplished through particular means to be actionable."

(5) Madow, supra note 3 at 125.

(6) Id.

(7) Thomas Glenn Martin, Jr., Rebirth and Rejuvenation in a Digital Hollywood: The Challenge Computer Simulated Celebrities Present for California's Antiquated Right of Publicity, 4 UCLA Ent. L. Rev. 99, 113 (Fall 1996). California courts also look to decisions based on the right of publicity in other states.

(8) Given a choice of forums, a plaintiff dealing with the novel issue of the right of publicity on the Internet is likely to desire filing the claim in California. California is attractive to such a plaintiff because the state offers the more extensive common law protection which has led to liberal decisions such as a finding for the plaintiff in White v. Samsung Electronics America, Inc., see infra note 15 and accompanying text.

The issue in such a case is whether a California court could exercise jurisdiction over a defendant that is not a resident of the state and does not have sufficient contact with California to establish general jurisdiction. To establish specific jurisdiction in California, a three-prong test must be satisfied: "(1) the defendant must commit an act by which he purposefully avails himself of the privilege of conducting activities in the forum; (2) the claim must arise out of the forum related activities; and (3) the exercise of jurisdiction must be reasonable." Rubbercraft Corp. of California v. Rubbercraft, Inc., 1997 WL 835442 (C.D. Cal.).

The first prong of this test, "purposeful availment," is satisfied if the defendant takes "deliberate action" toward the forum state. Panavision International, L.P. v. Toeppen, 1998 WL 178553 (9th Cir. (Cal.)). The Ninth Circuit has also held that solicitation, by a nonresident defendant, in the forum state that results in negotiations or business transactions generally satisfies this prong of the test. Rubbercraft, 1997 WL 835442 at 3 (citing Sinatra v. National Enquirer, Inc. 854 F.2d 1191, 1195 (9th Cir. 1988)). However, in Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414 (9th Cir. 1997), a case involving advertisements on the Internet, the Ninth Circuit found that no court had ever held an Internet ad alone is sufficient to subject a defendant to jurisdiction in another state. Id. at 418. The court in Rubbercraft granted specific jurisdiction over a defendant who not only published a Web page but also actively placed national advertisements and maintained a toll free telephone line. It appears that when analyzed under these rules, a non-California fan who merely publishes a web page about a celebrity, is not subject to specific jurisdiction in California.

In intentional torts cases, the "effects test" has also been used to determine whether a defendant has "purposefully availed" himself to jurisdiction in the forum state. Id. at 420. Under this approach, the court looks to the "focal point both of the [act] and of the harm suffered." Id. (citing Calder v. Jones, 465 U.S. 783, 789 (9th Cir. 1993)). In Calder, the plaintiff, a famous actress who lived and worked in California, was libeled by a story run in the defendant's national publication. In finding that California was the "focal point" of the claim and thus jurisdiction in California was justified, the Ninth Circuit, in Calder, relied on the fact that the publication had a large audience in California. In contrast, in Cybersell, the Ninth Circuit noted that a plaintiff corporation does not suffer harm in a specific geographic location as an individual does. Also significant was the fact that only one "hit" of the defendant's Web site occurred in Arizona, the state in which plaintiff attempted to establish jurisdiction, and the "hit" was made by the plaintiff. Because the California common law right of publicity is a tort cause of action, the effects test may be used in these cases. Where a fan Web site receives a large proportion of its "hits" in California and a celebrity residing and working in the state alleges an infringement of his right of publicity, a court may find these facts sufficient to establish specific jurisdiction over the non-resident defendant based on a comparison to the Calder case.

The second prong of the test for specific jurisdiction is whether the plaintiff's claim arises out of the defendant's forum related activities. Panavision, 1998 WL 178553 at 6. This prong is satisfied if the plaintiff would not have been injured "but for" the defendant's conduct directed toward California. Id. In Rubbercraft, the court found that the defendant's actions of expanding its business outside the Southeastern United States injured the plaintiff in California, the state in which the plaintiff conducted its business. The Rubbercraft court held that the "plaintiff's injuries in California would not have occurred had the defendant not engaged in those activities." Rubbercraft, 1997 WL 835442 at 4. And because the defendant's actions were relevant and related to the plaintiff's alleged causes of action, including, inter alia, California dilution, false advertising, and unfair competition, the court found the second prong of the test satisfied. Clearly, in the case of a fan Web site, "but for" a defendant posting a celebrity plaintiff's name or likeness on the Web site, the plaintiff would not be injured in the state of California.

Finally, the third prong of the test requires a finding that extending jurisdiction over the defendant in the forum state is a reasonable exercise of jurisdiction. The Ninth Circuit has laid out a seven factor analysis of this requirement: "(1) the extent of a defendant's purposeful interjection; (2) the burden on the defendant in defending in the forum; (3) the extent of conflict with the sovereignty of the defendant's state; (4) the forum state's interest in adjudicating the dispute; (5) the most efficient judicial resolution of the controversy; (6) the importance of the forum to the plaintiff's interest in convenient and effective relief; and (7) the existence of an alternative forum." Panavision, 1998 WL 178553 at 7. Whether a given factor weighs in favor of the plaintiff or the defendant is determined by the court and a balancing test is conducted. Depending upon the specific facts in a given case, a determination that the reasonableness prong is satisfied is feasible. This would lead to the ultimate conclusion by a court that California may extend specific jurisdiction over the defendant.

For a discussion on international jurisdiction and Web sites, see Stephan Wilske & Teresa Schiller, "International Jurisdiction in Cyberspace: Which States May Regulate the Internet?" 50 Fed. Comm. L.J. 117 (Dec. 1997).

(9) The Federal Lanham Act is also a source of protection against commercial uses of a person's image. A discussion of this law is outside of the scope of this article.

(10) Cal. Civ. Code § 3344(a) (West 1998).

(11) Cal. Civ. Code § 3344(b) (West 1998).

(12) Midler v. Ford Motor Credit, 849 F.2d 460 (9th Cir. 1988). In Midler, the plaintiff, a popular, professional singer, alleged the use of a "sound alike" in defendants' commercial violated her right of publicity. Unable to obtain Midler's services for the commercial, the defendants employed another singer to imitate the plaintiff's singing voice "as much as possible." The Ninth Circuit held that Sec. 3344 does not prevent use of a sound alike, because a sound alike is the use of the impersonator's "voice" not the plaintiff's "voice" as required by the statute.

(13) Id. at 463.

(14) Id.

(15) White v. Samsung Electronics America, 971 F.2d 1395 (9th Cir. 1992). The plaintiff in White, Vanna White, was the hostess of "Wheel of Fortune," a popular television game show. White was a blonde, known for donning elegant evening gowns on the show. The defendant, in a national print ad, depicted a robot dressed in a wig and gown purposely selected to resemble the plaintiff's hair and dress. The robot was placed on a set resembling that of "Wheel of Fortune."

(16) Id. at 1397.

(17) Fleet v. CBS, Inc., 50 Cal. App. 4th 1911 (1996); Eastwood v. Superior Court, 149 Cal. App. 3d 409 (1983).

(18) Cal. Civ. Code § 3344(e).

(19) Id.; Fleet v. CBS, Inc., 50 Cal. App. 4th 1911, 1918 (1996); Eastwood v. Superior Court, 149 Cal. App. 3d 409, 417-18 (1983). In Eastwood, the defendant published a story about the plaintiff, Clint Eastwood, that was false but presented as true. It was the use of the plaintiff's name and likeness on the cover of defendant's magazine and in television ads that was found to have a direct connection to the defendant's "commercial purpose." The court rejected the defendant's argument that Section 3344 requires the use of an unauthorized endorsement by the celebrity to constitute an actionable claim.

(20) Id. at 418.

(21) White v. Samsung Electronics America, 971 F.2d 1395, 1397 (9th Cir. 1992) (citing Eastwood v. Superior Court, 149 Cal. App. 3d 409,417 (1983)). The White court noted that Eastwood did not intend to limit "identity" to name or likeness. Id. at 1397.

(22) Id. at 1399.

(23) Id. at 1398.

(24) Midler v. Ford Motor Credit, 849 F.2d 460, 463 (9th Cir. 1988) (holding "only that when a distinctive voice of a professional singer is widely known and is deliberately imitated in order to sell a product, the sellers have appropriated what is not theirs and have committed a tort in California"). The Midler court reasoned that the plaintiff's voice was an attribute of her "identity" for purposes of the California common law right of publicity because "[t]he human voice is one of the most palpable ways identity is manifested." Id.

(25) Eastwood v. Superior Court, 149 Cal. App. 3d 409 (1983).

(26) Id. at 417 (citing Prosser, Law of Torts (4th ed. 1941) § 117, pp. 804-807); White v. Samsung Electronics America, 971 F.2d 1395, 1397 (9th Cir. 1992).

(27) Newton v. Thomason, 22 F.3d 1455, 1461 (9th Cir. 1994). In Newton, the plaintiff, Wood Newton, a singer/songwriter, alleged a violation of his right of publicity because of defendant's use of the plaintiff's name for a character in a television series. The Ninth Circuit found that the although newspaper announcements mentioned the lead character's name was "Wood Newton", the defendant's never used plaintiff's name to advertise or promote the series or to sell any products or services. Id. at 1459. The court held that under the California common law, a "commercial purpose" may lie somewhere between the two extremes of direct advertising and merely mentioning the plaintiff's name as a character on the series in a promotional ad. Id. at 1461. The Newton court also pointed out that there was no indication that the television character was modeled after the plaintiff, and "any commercial advantage that [the defendant] gained by these advertisements was totally unrelated to Newton's notoriety as a country/western music performer." Id.

(28) Id.

(29) Cal. Civ. Code § 3344(d).

(30) Id. Again, under Section 3344(e) an exempted use is not subject to liability merely because the medium in which it is presented contains paid advertisements. The Ninth Circuit presented this proposition well in Leindholt v. L.F.P. Inc. 860 F.2d 890, 895 (9th Cir. 1988) when it stated "[t]he fact that Hustler Magazine is operated for profit does not extend a commercial purpose to every article within it."

(31) Dora v. Frontline Video, Inc. 15 Cal. App. 4th 536, 545 (1993) (concluding that by listing news and public affairs separately in Section 3344(d) the Legislature intended public affairs to include things not necessarily considered news).

(32) Id. at 546.

(33) Id. at 545.

(34) Baugh v. CBS, Inc., 828 F. Supp. 745, (N.D. Cal. 1993).

(35) Eastwood v. Superior Court, 149 Cal. App. 3d 409, 421-22 (1983).

(36) Id. at 421 (citing Carlisle 201 Cal. App. 2d 733, 746 (1962)).

(37) Id.

(38) Dora v. Frontline Video, Inc. 15 Cal. App. 4th 536, 542 (1993); Eastwood v. Superior Court, 149 Cal. App. 3d 409, 422 (1983) (both citing Carlisle v. Fawcett Publications, Inc., 201 Cal. App. 2d 733, 746 (1962)).

(39) Dora v. Frontline Video, Inc. 15 Cal. App. 4th 536, 542 (1993). "There is no doubt that entertainment enjoys First Amendment protection. It is also true that entertainment can be important news itself." Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 578 (1977).

(40) Joseph Burstyn, Inc. v. Wilson 343 U.S. 495, 502 (1952). However, the Supreme Court indicated that motion pictures are not necessarily subject to the "precise rules governing any other particular method of expression." Id. at 503.

(41) Eastwood v. Superior Court, 149 Cal. App. 3d 409, 423 (1983) (citing Cohen v. California 403 U.S. 15, 25).

(42) Midler v. Ford Motor Credit, 849 F.2d 460, 462 (9th Cir. 1988) (citing Felcher and Rubin, Privacy, Publicity and the Portrayal of Real People by the Media, 88 Yale L.J. 1577, 1596 (1979)).

(43) 17 U.S.C. § 301 (1976).

(44) Fleet v. CBS, Inc., 50 Cal. App. 4th 1911, 1919 (1996) (citing Del Madera Properties v. Rhodes and Gardner, Inc., 820 F.2d 973, 976 (9th Cir. 1987)). In Fleet, the plaintiff's, two actors who appeared in a movie for which the defendant was the copyright holder, sought to prevent the use of their names and likenesses in that movie after they were allegedly not paid for their performances. The Ninth Circuit held the plaintiff's right of publicity claim was preempted by federal copyright law because the claims are equivalent. In Fleet, the actors attempted to prevent the exhibition of a copyrighted work. By consenting to being taped for the movie, the plaintiffs' performances became fixed for purposes of copyright law, and therefore, the performances were copyrightable and exempt from a right of publicity claim.

(45) Id. at 1920.

(46) Id.

(47) Midler v. Ford Motor Credit, 849 F.2d 460, 462 (9th Cir. 1988).

(48) In 1996, about 40 million people used the Internet. By 1999, that number should grow to 200 million. Reno v. ACLU 117 S.Ct. 2329, 2334 (1997).

(49) See http://olis.net.au/~amanda/romeo.html, Web site about Leonardo DiCaprio includes: daily news, bio, photos, reviews, fan mail, links to Titanic, Romeo & Juliet and other fan Web sites.

(50) But see Michaels v. Internet Entertainment Group, Inc., 1998 WL 211257 (C.D. Cal.) (granting plaintiffs a preliminary injunction against defendant publishing, copying, or distributing a videotape of the plaintiffs engaged in sexual intercourse). In Michaels, the plaintiffs, Bret Michaels, former lead singer of the rock band Poison, and Pamela Anderson Lee, a well-known actress, made a videotape of themselves engaged in sexual intercourse. Michaels gave a copy of the tape to a friend as a "gift" and it was this friend who sold his copy of the tape to the defendant, a company that distributes adult entertainment material through a subscription service on the Internet. On the defendant's Internet site, the defendant advertised the availability of the Michaels/Lee video to its subscribers. The Michaels court found that the plaintiffs made a showing of a likelihood of success on the merits of their claim for violation of both the common law and statutory California right of publicity.

(51) Cal. Civ. Code § 3344(a) (West 1998).

(52) Midler v. Ford Motor Credit, 849 F.2d 460 (9th Cir. 1988).

(53) Waits v. Frito-Lay, Inc. 978 F.2d 1093, 1100 (9th Cir. 1992) (presenting the elements formulated in Midler v. Ford Motor Credit, 849 F.2d 460 (9th Cir. 1988)).

(54) Id.

(55) Eastwood v. Superior Court, 149 Cal. App. 3d 409, 417 (1983) (citing Prosser, Law of Torts (4th ed. 1941) § 117, pp. 804-807); White v. Samsung Electronics America, 971 F.2d 1395, 1397 (9th Cir. 1992).

(56) This is because most cases deal with the issue of exempted uses before deciding whether it is a prohibited use.

(57) Martin, supra note 7 at 117 (suggesting that the most recent California right of publicity cases have required the plaintiff to show a use is not exempt before the issue of commercial use is addressed).

(58) Dora v. Frontline Video, Inc. 15 Cal. App. 4th 536, 544 (1993) (quoting Carlisle v. Fawcett Publications, Inc., 201 Cal. App. 2d 733, 747 (1962)).

(59) Dora v. Frontline Video, Inc. 15 Cal. App. 4th 536, 545 (1993) (citing Eastwood v. Superior Court, 149 Cal. App. 3d 409 (1983)).

(60) Christina Fernandez, The Right of Publicity on the Internet, 8 Marq. Sports L.J. 298 (Spring 1998).

(61) See supra note 19-20 and accompanying text.

(62) Rebecca Tushnet, Legal Fictions: Copyright, Fan Fiction, and a New Common Law, 17 Loy. L.A. Ent. L.J. 651 (1997).

(63) Id. (noting that Star Trek is the largest source for fan fiction). Other popular sources include: The X-Files, Xena, and Millennium.

(64) See X-Files FanFic Archive <

HYPERLINK http://fluky.gossamer.org/

http://fluky.gossamer.org/

> (containing links to fan fiction of The X-Files series and including photos of the stars, Gillian Anderson and David Duchovny); see also <

HYPERLINK "http://www.pitt.edu/~djtst18/fan-fic/"

http://www.pitt.edu/~djtst18/fan-fic/

>, Fan fiction web site of Star Trek: The Next Generation that includes a cast photo.

(65) Tushnet, supra note at 62.

(66) Id.

(67) Wendt v. Host International, Inc., 125 F.3d 806, 811 (9th Cir. 1997).

(68) Id. at 809.

(69) Id. at 810.

(70) Fleet v. CBS, Inc., 50 Cal. App. 4th 1911, 1920 (1996).

(71) Id.

(72) Sound clips from movies or television shows present a different issue. Since a voice is not copyrightable, the performer would not be preempted by copyright law from claiming a right of publicity violation. Midler v. Ford Motor Credit, 849 F.2d 460 (9th Cir. 1988). However, such sound clips posted on the Internet were met with cease and desist orders from studios and thus are rarely found online anymore.

(73) Brown, supra note 2 at 38.

(74) Id. at 39. Other players include Sony, Philips, and Mitsubishi. Id. at 37.

(75) Id. at 44 (since computer screens have better resolution than television sets, PC's are actually easier and better for reading text).

(76) Id. at 38.

(77) Id.

(78) Id.

(79) Id.

(80) Id.

(81) Id. at 37.

(82) Id. at 38.

(83) Id. (also predicted that sales of Net TV devices will jump from 1 million in 1998 to 7.7 million in 2002).

(84) Rob Sabin, Are the Networks Showing Their Age?, Digital Home Ent., Jan./Feb. 1998, at 47, 51.

(85) Wayne's World (Paramount 1992). In this film, the main characters, Wayne and Garth, host a talk show that is broadcast on a public access cable station. The show is filmed in Wayne's basement and the characters are unknowns that become famous through the popularity of their show.

(86) See supra note 29 and accompanying text.

(87) Jerome E. Weinstein, Esq., Abbott and Costello Meet Frankenstein, Dracula and the Wolf Man in the Year 2000 or The Birth of the Synthespian, 32 Beverly Hills B.A. J. 32, 34 (Summer/Fall 1997). "The effect is achieved by electronically scanning thousands of pictures of the actor, taken from every angle. The data is then fed into a computer to create a 'sculpture' which is combined with information on gestures and movements gleaned from old film clips, to arrive at a final animated product. Voices are replicated by digital copying of speech patterns from earlier recordings." The digitally created actor is known as a "Synthespian." Id. at 33.

(88) Martin, supra note 7 at 122.

(89) Id. at 122-23; Tushnet, supra note 62.

(90) But see, Martin, supra note 7 at 123 (arguing that if the performance is part of a larger work which contains a significant amount of the defendant's own creativity then no liability).

(91) Cal. Civ. Code § 3344(a) (West 1998).

(92) Martin, supra note 7 at 126.

(93) Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 576 (1977). In Zacchini, the plaintiff, performer of the "human cannonball" act, sued the defendant for broadcasting, on a television news program, an unauthorized recording of the plaintiff's entire performance. The Supreme Court held there was a violation of the plaintiff's right of publicity and the First Amendment exception for news broadcasts did not apply to these facts. The Court noted that the line between "media reports that are protected and those that are not" is unclear, however, the Constitution provides no immunity for "the media when they broadcast a performer's entire act without his consent." Id. at 575. The Court also addressed the public policy considerations behind the right of publicity as justifications for its holding. Id. at 575-76.

(94) Joseph Burstyn, Inc. v. Wilson 343 U.S. 495, 502 (1952).

(95) Id. at 501-02.

(96) Mark F. Grady, A Positive Economic Theory of the Right of Publicity, 1 UCLA Ent. L.Rev., 97, 107-08 (1994).

(97) Id. at 108-11.

(98) Id.

(99) Id. at 108 (quoting from Melville B. Nimmer, The Right of Publicity, 19 Law & Contemp. Probs. 203, 215-16 (1954)).

(100) Id. at 109 (noting that the district court judge in Midler v. Ford Motor Credit compared the defendants to thieves).

(101) Id. at 110 (citing Chief Justice of the California Supreme Court Rose Bird's dissent in Lugosi v. Universal Pictures, 25 Cal. 3d 813, 850 (1979) (Bird, C.J. dissenting)).

(102) Id.

(103) Roberta Rosenthal Kwall, Fame, 73 Ind. L.J. 1, 3 (1997).

(104) Id. (citing Madow, supra note 3).