Comedy today is at a ‘golden age’ and Louis CK is one of the greatest beneficiaries of this new age in comedy, if not perhaps the greatest beneficiary himself. So says the new book “Comedy Under Attack: The Golden Age and the Headwinds.” And Louis doesn’t shy away from acknowledging his good fortune: “The amount I get paid by these promoters is crazy…I could make $100,000 in a night,” he said about two years ago to Maxim magazine. Aside from the big fees he commands when he actually performs his act, Louis CK can also rake in a ton of money from just his massive fame alone. This is what would happen when he, say, endorses a product or licenses other folks to use his name for whatever it can fetch them. And the picture gets even more rosy thanks to the way the law has changed over the past 30 or so years. This means that even after he passes away, the party continues: His daughters or whoever controls his estate can still keep using his fame to make money as if the guy’s still around.
But can anything go wrong with this enviable picture of a gravy train? For instance, suppose folks who are not connected to Louis CK and who do not have his blessing want to get in on the money action anyway by trading on the comedian’s fame, can Louis CK stop such guys? (You can term these guys ‘freeloaders,’ if you like.) Or if he’s no longer around, can his “heirs and assigns” (you know, his kids and other folks to whom he may have given the right to control the use of his fame) stop the freeloaders? Well, the short answer is that, thanks to the ‘free speech’ clause of the First Amendment, these freeloaders can get away with it, if they are smart enough in the way they go about it. Of course, with things like this, the devil is in the details. And the real headache for everyone involved is that we’re not talking about a black-and-white situation by any means.
To be sure, everything we’ve already said above plus whatever we will say below on this subject applies to Louis CK as equally as it does to each of today’s successful or famous comedians.
For starters, the ability of a famous person (or celebrity) to control the use of his name or fame by choosing when to endorse products or to grant licenses to others is called the “right of publicity”. And here we’re dealing with things like the use of the famous person’s name, photo, voice, signature, likeness and anything else about that person’s life that has ‘commercial value’. We usually encounter this right of publicity power when dealing, for instance, with the use of a person’s name in connection with an ad for a product or a service. As part of the celebrity’s control over his publicity package, he can, if he wishes to do so, give or transfer this right to somebody else by way of a contract. In that case, folks who try to mess with this right of publicity will have to answer to the new guy who acquired the right under the contract. In short, the right of publicity is usually so personal to the guy who owns it that if we were talking about goods and services or, let’s say creative works like books and movies, we’ll be using terms like ‘trademark’ and ‘copyright’ instead. Of course, when it comes to the right of publicity, we are dealing with the ‘identity’ of a ‘person’ rather than a ‘thing’, but the very idea of owning something with ‘commercial value’ is the same in the right of publicity situation as it is with the trademark and copyright situations.
There are a number of ways in which a famous person’s right of publicity could be violated by somebody else. The easiest situation is where someone, for instance, uses Louis CK’s name in a product ad without his permission. That obviously would be a violation of his right of publicity and this is something that any bloke on the street could easily understand. Same goes for attaching the man’s name to a comedy show or a music concert that he has no connection with, in hopes of boosting ticket sales from doing so. By the way, it is worth noting that these are the kinds of situations that originally led to the creation of the right of publicity in the first place. In other areas outside comedy, the right of publicity is taken no less seriously: For instance, when someone tried to sell a plastic bust of Martin Luther King, Jr., his family won a lawsuit to put the kibosh to that move. Also, the TV personality Vanna White from Wheel of Fortune was able to stop an ad that mimicked her actions by using a robot wearing a blond wig to turn block letters on a game board. To bring the matter closer home to comedy, somebody who goes out there today, for instance, to use the line “Here’s Johnny,” which evokes “The Tonight Show” with Johnny Carson” will probably be shot down for wrongfully appropriating or taking something of value from Johnny Carson.
In the real world, when somebody violates a famous person’s right of publicity, the usual remedy is a lawsuit that seeks damages and more. The famous person could, for instance, ask for an accounting of the money or profits made from the unauthorized use of his or her name. The court could also hit the offender with an order of punitive damages, attorney’s fees, injunction and more.
Speaking of how courts handle situations where it is alleged that a famous person’s right of publicity has been violated by somebody else, the one case that stands out as a good example is the 2001 case involving The Three Stooges, who were slapstick comedy legends from the 1950s and 1960s. In that case, a California artist reproduced charcoal sketches of the Stooges trio (Moe, Larry and Curly) on lithographs and T-shirts and then offered the drawings for sale to the public. The children of The Three Stooges team then sued the artist for a violation of the right of publicity of the Stooges trio, all of whom had died a long time ago. The court agreed with the children and rejected the artist’s claim that he was exercising his free speech rights under the First Amendment.
In essence, the court said that because the artist’s drawings did not make any kind of ‘creative contribution’ to the likeness of the trio, it just was not the kind of expression that the First Amendment lives to protect. In other words, since the drawings did not add anything new or fresh to the image of the three men, there was therefore no message of any sort in there, which could have been regarded as some kind of ‘expression’ of his free speech rights. As the court saw it, the drawing made by the artist (Gary Saderup) lacked any real creativity and was therefore just a flat-out use of the image or likeness of famous people to make money. Well, it is probably not such a bad idea to note here that although it may not be immediately obvious, there is actually a certain downside to the way the court handled this case: Thanks to this kind of approach, the judges are now the guys deciding what is art and what isn’t art as well as what is creative enough to qualify for free speech protection and what isn’t. Talk about a fuzzy picture and a situation where it is hard to gauge which way the wind is blowing.
Yet, that’s the law here and it is what it is. Incidentally, the way the court decided the Stooges case also answers the question posed above regarding when other folks are allowed to benefit from a celebrity’s fame without his permission. To put the matter in layman’s terms, one can say that if the material in question is ‘creative’ enough that it can somehow be viewed as containing a ‘message’, then chances are that it will be regarded as an ‘expression’ which is protected by the free speech clause of the First Amendment. For instance, if the artist’s drawing in The Three Stooges case would have been presented in a way that perhaps made fun of the three slapstick comics rather than simply reproducing their likeness and offering it for sale, the court likely would have accepted it as a ‘parody,’ which is a form of expression protected under the free speech clause.
Also, it is important to note here, that contrary to a common misconception by many, the fact that a piece of art bearing the likeness of a famous person is offered for sale to the public or even that it is mass produced in several copies does not necessarily mean that the work is not a valid expression of free speech rights. Of course, we all know that somebody who is mass producing copies of an image and offering them for sale is in it for the money. Yet, thanks to the free speech law, he is allowed to do so as long as he is smart and creative enough to give the thing the appearance of some kind of a message. It is said that celebrities have such a large role in peoples’ lives and mean different things to different folks that making use of celebrity images in different ‘creative’ ways is an important form of expression for people. That’s why the courts have, for instance, allowed a painting of golfer Tiger Woods to be sold for money without Woods’ permission; the courts have also allowed people to sell trading cards that made fun of famous baseball players, again without their permission. To digress a bit here, one might say that comedians, as people who make fun of things in creative ways, just might find this sort of opportunity to be rather interesting.
In the end, one can safely say that when it comes to fame and fortune, the law today offers a changed and still changing landscape to comedians and the wider entertainment community for that matter. The new landscape that has been emerging over the past one generation has two sides to it: thanks to the right of publicity, fame today has been made into something of a ‘property’ right which a celebrity comic can turn into big money at any time. And when he’s no longer around, the celebrity is now allowed to even pass it on his kids and family (just like his car or his house). Yet, thanks this time to the free speech clause of the First Amendment and the whole business about ‘creative expression’, the law also permits some pesky gray areas that make it possible for total strangers to literally ride the coattails of famous comics on their way to grabbing some fortune of their own without anybody’s permission. (Same situation applies to famous entertainers in other fields.)
So, can one say that contemporary superstar comics like Louis CK and others have a fair deal here under the changing law? You bet! Here’s the thing: first, to digress just a bit, it is true that because of the holes in the copyright law, comedy material (their most vital asset) isn’t really protected from joke thieves and so can be stolen rather easily. Yet, when they do hit the fame and are rolling in all the fortune that comes with fame, the law gives today’s comedians the kind of big time protection of their fame and fortune that their predecessors could only have dreamed of.