Harpo Films, the multimedia production and movie company founded and run by mogul Oprah Winfrey is being sued by a representative of the Melvin B. Tolson family for allegedly violating his “Right of Publicity” for use of the deceased individual’s likeness in the film The Great Debaters. The civil suit, filed in a federal court in the United States District Court of Louisiana (Shreveport) last week, also names The Weinstein Company and MGM as defendants for a yet-to-be-disclosed sum of damages.
The Great Debaters, a film directed by and starring Denzel Washington, was commercially released in 2007 and is based on a true story. The plot involves the efforts of debate coach Melvin B. Tolson at Wiley College (a historically black university) to place his debate team on equal footing with white universities in the American South. During the 1930s, Jim Crow laws were the law of the land and there was a common repugnant false belief that black college students were not as intelligent as their white counterparts. In the film, the Wiley team achieves success earning the opportunity to debate Harvard University. The film was produced by Oprah Winfrey’s Harpo Films and produced by The Weinstein Company and MGM. The film was mostly critically acclaimed and grossed $30.2 million dollars according to IMDB.
The Civil Complaint was filed last week by Plaintiff Wayne Semien, a representative of the Tolson family. He states that, in order to competently prepare the film to be historically accurate Tolson’s son provided recordings of his father to the producer’s of the film. The purpose was for Washington to study Tolson’s mannerisms, demeanor, and voice in preparation for the role. Washington, an iconic Oscar award-winning actor, no doubt put the recordings to good use. Finally, when the film was completed the Tolson family was invited to attend the premiere, an offer they accepted.
According to the complaint, Harpo staffers told the Tolson family members “We are going to take care of you and the family.” In doing so, the staffers allegedly dissuaded the family of seeking independent counsel insisting that this was unnecessary. Shortly after this, things seemed to go awry. The Tolson family claims that any attempts to contact Oprah Winfrey herself, or representatives from Harpo Films, Weinstein and MGM were fruitless. They never received nor were offered any compensation for their help in the film’s development nor for the use or likeness of Melvin B. Tolson. Nor were they ever asked permission to use his name or life story. Therefore, the Tolson family filed suit for Unauthorized Use of Identity.
A right of publicity is the right of an individual to control the commercial value of their name, likeness, voice, signature, or other personal identifying traits that are unique to them. Obviously, since Tolson died in 1966, his family has the legal right to bring suit. Depending on who the individual is his or her identity is a significant asset, worth millions of dollars, and able to wield significant power over the government, entertainment, business, and private sectors. In other words, identity can be a valuable property right.
Technically, everyone enjoys a right of publicity. However, it probably comes as no surprise that in most cases, the right is only zealously guarded by the famous (and infamous) in society. Additionally, the right of publicity is an integral part of the right of privacy. In addition to protecting against unauthorized use of a person’s name or likeness, the right of privacy protects a person from the publication of embarrassing private facts, from being put in a false light, and from the publication of false information. Here, it appears that the argument is that Tolson’s “personal rights” were exploited for profit without compensation.
The right of publicity was first identified as such in a 1953 case called Haelen Laboratories vs. Topps Chewing Gum, Inc. In Haelen, the court pointed out the right of publicity was not based on protecting a person’s privacy, but on preventing the unauthorized use of a person’s name or likeness. Currently, the right of publicity is recognized in over half the states, either by statute or common law. Although many states recognize that everyone has a right of publicity, some only recognize celebrity rights. Here, the Tolson family is suing in Federal Court based on the amount in controversy “tens of millions” as well as the unjust enrichment legal theory outlined in Factors Etc., Inc. v. Pro Arts, Inc and cited in LA Civ Code 2298.
While it may seem that the Tolson family may have been taken advantage of due to a lack of sophistication in these matters, the Plaintiffs may face an uphill battle in this particular lawsuit. There are, of course, limitations on the right of publicity. First Amendment considerations may trump the right of publicity when certain types of speech or expression are at issue. Especially when the expression involves artistic expression, such as in film or literature, or is “newsworthy,” the First Amendment protections will kick in and bar a suit based on the right of publicity. Similarly, the creators of The Hurt Locker were sued for similar complaints. The court found that biographical stories, even if fictionalized, are protected under the First Amendment. This precedent is a bad sign for the Tolson family. Furthermore, the Tolson family, by their own permission, helped with the making of the film since its inception and did not request any compensation. The alleged assurance of “taking care of the family” surely will be objected to as hearsay. Besides, this alleged assurance was ambiguous at best and did not guarantee monetary compensation.
These situations once again accentuate the need for independent counsel. If someone is requesting to use something that contains someone’s name, likeness, or even the sound of their voice, there needs to be an evaluation the risks involved, certainly with the assistance of legal counsel, before that material is allowed to be published. Also, there should be an investigation of the use of a deceased person’s name to determine if any rights still exist, and who holds those rights. One should also determine what defenses they may have that will allow them to use the material and reduce the risk of a lawsuit. Finally, depending on the situation, one should consider obtaining insurance that will cover the right of publicity claims against the business. Here, with a long legal battle in front of them, the Tolson family better hope that some of the debating skills have rubbed off on them.