Monday, May 11, 2009

Busted by eBay for Selling Pin-Up Star Photos

Dear Rich: I sell vintage movie memorabilia, old movie posters, and move photographs that were produced by studios as publicity and advertising. They are quite collectible and even in this rotten economy manage to hold some value. I do not sell copies, only originals. I recently offered at eBay two photos of an actress -- a 50's pin-up, Playboy centerfold, and "B" movie queen -- and the actress complained that they violated her right of publicity and she had them removed from eBay. A strike has been placed on my account and I am told if it happens again I will be suspended from selling, i.e., I will be out of business on eBay. I've been running a business for years selling these types of goods. I always thought the right of publicity was intended so I could not sell copies or produce products with the images of celebrities. I did not know they also owned the rights to these vintage materials that were either sold or given away by the studios to theatre owners and newspapers. Am I really violating the law? Did the actress really have the right to have these removed? I'm so glad you asked. The short answers to your question are "No," and "No." One of the precepts behind the right of publicity is that each person should have the right to control how others exploit (or "commercialize") their persona, image, and name. For example, Woody Allen has been vigorous in his use of the right because he does not want to be perceived as endorsing other people's products (or having others imitate him to sell products). But re-selling legitimate, previously licensed photos (that is, the pinup consented to the original movie stills) is not a violation of the right of publicity. This is an area where the right of publicity intersects with the first sale doctrine and -- as this case demonstrates -- the first sale doctrine trumps.
As for eBay, they're casting an unnecessarily wide net, probably because it's easier than addressing each situation on a case-by-case basis. Their celebrity policy seems confusing and does not address your situation (sales of original posters or stills) and eBay's intellectual property rules don't cover your situation as well. Since your actions are not prohibited by law or by eBay, you should consider making an objection. Under eBay's rules, you can't just re-list the item; instead, you're supposed to contact eBay using the link in their email (and please feel free to link to this blog). Until this matter is resolved, the Dear Rich staff has stopped listing its Strawberry Shortcake collectibles at eBay (and we'll encourage others to do the same).