Mother Teresa, Tiger Woods and the use of IP as censorship

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Trumbull, Conn. is a town of 36,000 in suburban Fairfield County, perhaps best known for winning the 1989 Little League World Series and for being the hometown of decidedly unfunny insult comic Lisa Lampanelli.

But the sleepy burg (Family Circle magazine’s seventh-best “Town for Families” in 2011) currently finds itself in the midst of a controversy that combines the swirling issues of censorship and copyright, and particularly how claims to the latter can result in the former.

At issue is a painting titled “Women United: From Abigail Adams to Gloria Steinem” by local artist Robin Morris. It was one of 33 Morris paintings commissioned by Trumbull residents Dr. Richard Resnick and his wife Jane Resnick, which the Resnicks donated to be displayed at the Trumbull Library as the “Great Minds” series.

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Until, that is, Trumbull officials started getting angry messages, including from a local priest, insisting the painting (pictured above) be taken down. The scene depicts images of historical women of note, like Abigail Adams and Clara Barton, but also includes modern feminist icons Gloria Steinem, Betty Friedan and Planned Parenthood founder Margaret Sanger, alongside Mother Teresa of Kolkata. Then, according to the Trumbull Times, this happened:

Following that interaction, [Library Director Susan] Horton received about eight more messages, all from men, she said, including from Pastor Brian Gannon of St. Theresa Roman Catholic Church in town. Horton was later forwarded a message from The Order of Missionaries of Charity in India, claiming the painting is a copyright infringement for using Mother Teresa’s image.

Horton said the library has been unable to find any proof that the painting would be a copyright infringement. However, First Selectman Tim Herbst demanded the painting be taken down last week, after getting opinion from town counsel.

To start, it’s unlikely that there is an actual copyright claim involved, unless there is an accusation that the painter, Morris, borrowed inappropriately from some other artist or image, which doesn’t appear to be the case. Barring that, then either Morris or Resnick owns the copyright, depending on the terms of the commission, and both are clearly amenable to the piece being publicly displayed. Indeed, that’s precisely why it was made.

Instead, the likelier claim by the Missionaries of Charity (if they are, indeed, pressing a claim at all – the provenance of this “message” remains somewhat murky from the reporting) is probably one of “personality rights,” which govern the rights individuals have to control the use of one’s own name or image in commercial contexts.

Personality rights are not copyrights, but rather are more akin to trademarks. Trademarks are asserted to keep potential competitors from muddying the marketplace through intentional confusion, say, by attempting to market an “AppleSauce” personal computer. By contrast, personality rights — building on Samuel Warren and Louis Brandeis landmark 1890 Harvard Law Journal formulation of “The Right to Privacy” — prevent the misappropriation of one’s name or likeness for commercial purposes. Most often, they are invoked by celebrities against advertisers for intentionally misleading the public about whether the celebrity endorsed the product in question (a significant corpus of recent case law has involved “sound alike” voiceover recordings).

Since the painting is not being used in a marketing context (or, indeed, in a commercial context at all) it’s hard to see what the personality rights claim could be. Unlike copyright and trademark, personality rights are governed largely by state law, although the federal Lanham Act, which deals largely with trademark infringement and false advertising, does extend to personality rights, as well.

Further complicating the issue is that Mother Teresa is not, in fact, alive. In many states, including neighboring New York, the right of publicity does not pass to one’s heirs after death. (In Connecticut, the right is embodied in common law, but not statute.)

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Perhaps the most relevant case to this incident would be the Sixth U.S. Circuit Court of Appeals’ July 2003 decision in ETW Corp. v. Jireh Publishing. ETW, the licensing agent for golfer Tiger Woods, sued Jireh, the publisher of paintings by sports artist Rick Rush, claiming that Rush’s work “The Masters of Augusta” (above) violated both Woods’ trademark and his personality rights. In addition to finding that a person’s likeness alone cannot usually stand as a trademark, the court noted that the painting was not merely a representation of Woods – it was a work of art. As the Thomas Jefferson Center puts it:

[The] work contained a creative component that originated with Rush and was unique to his talent. In other words, Woods’ image was merely the raw material for Rush’s original artistic expression. As such, Rush’s First Amendment right to artistic freedom outweighed Woods’ property rights in the profits generated by his image.

Of course, rather than point to this clear and compelling case law – directly relevant to the Morris painting – Trumbull did the expected, censorious thing and just took the painting down. Although since Resnick has pledged he would “take full legal responsibility for the collection, in order to…protect the town,” one hopes this kerfuffle will prove to be a temporary one.

(h/t TechDirt)

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