I’m on the fence on this one guys, discuss…
http://www.foxnews.com/story/0,2933,326565,00.html
mike
Duh!
We wouldn’t even be discussing this if Bush wasn’t in the White House – I suppose.
That guy needs a good assbeating.
Use of their image, while reprehensible, is probably within the bounds of free speech. It’s kind of like libel and slander of the dead, it is allowed, but in very bad taste.
Yes. It’s free speech. Unless it somehow rises to the level of violating the rights of family of the decesased. While maybe rephrensible, I don’t think it goes that far. As far as criticism of the government, that is at the core of free speech and one the most highly protected forms. To be punished for speech that criticizes or targets public officials, the speech has to be false and made with actual malice [knowledge that it’s false or reckless disregard for its truth or falsity]. A very tough standard.
I don’t know much about privacy law. But it seems like the families might have a more legitimate privacy claim or just a general tort claim.
Free speech indeed. The problem with using names is they are not original…usually. One would have to prove that the person being named is in fact that person and not some other dead Sgt. Smith, for example.
And then there is the question: After one dies does ones kin have a claim on the name so that no one else can use if for some commercial enterprise…? This seems like it would fall under trademark. I don’t know.
[quote]jsbrook wrote:
Yes. It’s free speech. Unless it somehow rises to the level of violating the rights of family of the decesased. While maybe rephrensible, I don’t think it goes that far. As far as criticism of the government, that is at the core of free speech and one the most highly protected forms. To be punished for speech that criticizes or targets public officials, the speech has to be false and made with actual malice [knowledge that it’s false or reckless disregard for its truth or falsity]. A very tough standard.[/quote]
I think it’s probably free speech, but I disagree with your analysis in a few respects. The only person about whom he is expressing an opinion is Bush. I don’t think he’s making anything but statements of fact regarding the soldiers - and I think it’s at least debatable whether the soldiers are “public officials” under the usual analysis.
BTW, the soldiers wouldn’t have a libel claims for a few reasons 1) they’re dead (only the living have libel or slander claims) and 2) the only claim being made about them is that they’re dead, which is factually true.
There may be an unjust enrichment claim the families could make - the estates didn’t consent to the use of the dead soldiers’ names, and this guy is selling the t-shirts, presumably for a profit. That could also bring the sale of the shirts into the realm of commercial speech, which is a lower standard of protection than political speech - and a court might apply that standard w/r/t the use of the soldiers’ names on the shirts (though certainly not for the statement about Bush).
Interesting issue.
[quote]BostonBarrister wrote:
jsbrook wrote:
Yes. It’s free speech. Unless it somehow rises to the level of violating the rights of family of the decesased. While maybe rephrensible, I don’t think it goes that far. As far as criticism of the government, that is at the core of free speech and one the most highly protected forms. To be punished for speech that criticizes or targets public officials, the speech has to be false and made with actual malice [knowledge that it’s false or reckless disregard for its truth or falsity]. A very tough standard.
I think it’s probably free speech, but I disagree with your analysis in a few respects. The only person about whom he is expressing an opinion is Bush. I don’t think he’s making anything but statements of fact regarding the soldiers - and I think it’s at least debatable whether the soldiers are “public officials” under the usual analysis.
BTW, the soldiers wouldn’t have a libel claims for a few reasons 1) they’re dead (only the living have libel or slander claims) and 2) the only claim being made about them is that they’re dead, which is factually true.
There may be an unjust enrichment claim the families could make - the estates didn’t consent to the use of the dead soldiers’ names, and this guy is selling the t-shirts, presumably for a profit. That could also bring the sale of the shirts into the realm of commercial speech, which is a lower standard of protection than political speech - and a court might apply that standard w/r/t the use of the soldiers’ names on the shirts (though certainly not for the statement about Bush).
Interesting issue.[/quote]
I agree with everything you said. The only criticism of the government I meant was saying Bush was a liar. They can’t say that this was said with actual malice. As a public official he would have to prove that it is false and also said with actual malice. Something he probably couldn’t do.
And indeed, it is probably more of an opinion than a proveable fact as you say. [though it might be very interesting to actually see a court rule on whether Bush actually lied to the American public about the war. It would never happen for a host of reasons.] All the statements made about the soldiers themselves are indeed true. No defamation claim there.
I don’t know enough about first amendment jurisprudence to say definitively there is no other potential argument as to why the guy couldn’t say it. But I don’t see one.
[quote]BostonBarrister wrote:
jsbrook wrote:
Yes. It’s free speech. Unless it somehow rises to the level of violating the rights of family of the decesased. While maybe rephrensible, I don’t think it goes that far. As far as criticism of the government, that is at the core of free speech and one the most highly protected forms. To be punished for speech that criticizes or targets public officials, the speech has to be false and made with actual malice [knowledge that it’s false or reckless disregard for its truth or falsity]. A very tough standard.
I think it’s probably free speech, but I disagree with your analysis in a few respects. The only person about whom he is expressing an opinion is Bush. I don’t think he’s making anything but statements of fact regarding the soldiers - and I think it’s at least debatable whether the soldiers are “public officials” under the usual analysis.
BTW, the soldiers wouldn’t have a libel claims for a few reasons 1) they’re dead (only the living have libel or slander claims) and 2) the only claim being made about them is that they’re dead, which is factually true.
There may be an unjust enrichment claim the families could make - the estates didn’t consent to the use of the dead soldiers’ names, and this guy is selling the t-shirts, presumably for a profit. That could also bring the sale of the shirts into the realm of commercial speech, which is a lower standard of protection than political speech - and a court might apply that standard w/r/t the use of the soldiers’ names on the shirts (though certainly not for the statement about Bush).
Interesting issue.[/quote]
Is it not true that a “non-public” person has the right to control his or her own image, name and persona? This is not true for “public figures”–elected officials–and some entertainment “celebrities.”
If I were ugly as Sin, and my face were used without authorization in advertisements for Sin, could I get residuals?
[quote]DrSkeptix wrote:
If I were ugly as Sin, and my face were used without authorization in advertisements for Sin, could I get residuals?[/quote]
It depends. Are you as ugly as Cardinal Sin?
[quote]DrSkeptix wrote:
BostonBarrister wrote:
jsbrook wrote:
Yes. It’s free speech. Unless it somehow rises to the level of violating the rights of family of the decesased. While maybe rephrensible, I don’t think it goes that far. As far as criticism of the government, that is at the core of free speech and one the most highly protected forms. To be punished for speech that criticizes or targets public officials, the speech has to be false and made with actual malice [knowledge that it’s false or reckless disregard for its truth or falsity]. A very tough standard.
I think it’s probably free speech, but I disagree with your analysis in a few respects. The only person about whom he is expressing an opinion is Bush. I don’t think he’s making anything but statements of fact regarding the soldiers - and I think it’s at least debatable whether the soldiers are “public officials” under the usual analysis.
BTW, the soldiers wouldn’t have a libel claims for a few reasons 1) they’re dead (only the living have libel or slander claims) and 2) the only claim being made about them is that they’re dead, which is factually true.
There may be an unjust enrichment claim the families could make - the estates didn’t consent to the use of the dead soldiers’ names, and this guy is selling the t-shirts, presumably for a profit. That could also bring the sale of the shirts into the realm of commercial speech, which is a lower standard of protection than political speech - and a court might apply that standard w/r/t the use of the soldiers’ names on the shirts (though certainly not for the statement about Bush).
Interesting issue.
Is it not true that a “non-public” person has the right to control his or her own image, name and persona? This is not true for “public figures”–elected officials–and some entertainment “celebrities.”
If I were ugly as Sin, and my face were used without authorization in advertisements for Sin, could I get residuals?[/quote]
Yes, there is something to that. That’s why I said there might be a better claim under privacy or tort law. There’s some constiutional dimension to it as it’s a subset of privacy rights. But it’s mostly governed by state common law and statute. I don’t know to what if any degree the Supreme Court has limited exploitation as a constitutional matter, and i don’t think there are any federal statutes dealing with these issues. So, what’s allowed and what isn’t deprends mostly on where you live.
[quote]Varqanir wrote:
DrSkeptix wrote:
If I were ugly as Sin, and my face were used without authorization in advertisements for Sin, could I get residuals?
It depends. Are you as ugly as Cardinal Sin?[/quote]
I have to think it over.
As you know, the wages of sin are death. But by the time the taxes are taken out, it’s just sort of a tired feeling.
that’s sinking pretty damn low, but since there evidently aren’t any laws (yet) against the commercial use of dead soldiers’ names what they’re doing is fair game.
Might be an appropriation-invasion of privacy tort - names are being used for commercial advantage without permission - if he is engaged in business, and it looks like he is.
Maybe try and tack on a false light tort, but that probably would fail under the idea that the issue being raised is one of “public concern”.
Hmm. What if it was a statement about the Vietnam war? Of course, with names of those who perished in that conflict.
[quote]Sloth wrote:
Hmm. What if it was a statement about the Vietnam war? Of course, with names of those who perished in that conflict.[/quote]
The key is - is he trying to make money? Political speech is protected, but when you use someone’s name or image to make a buck, there is not only less protection under the First Amendment, but under the common law, there are actions (like suing on the tort of appropriations).
W/r/t to the Vietnam War statement - context matters. Even people selling T-shirts for a profit can be making a political point, but the law generally has protections from people using your “personality” to make money without your permission.
The natural problem is: where is the line drawn for political speech? Very hard to draw. You could argue most any “message T-shirt” could be about something political.
Someone or some court would have to determine whether that speech is more political or more commercial - a very hard case.
What about this?
Free speech? Fair use?