Friday, April 17, 2009

Quasi Celebrity in Title of Movie

Dear Rich: I have a question. If one uses the name of a quasi-celebrity in the title of a movie that parodies subject matter (organized crime, for example), is one protected under the fair use doctrine? I'm so glad you asked. The fair use doctrine has nothing to do with the use of a name in a movie title. (Copyright does not protect titles.) The fair use defense can only be used when accused of stealing copyrighted expression -- for example, taking text from a book, or a photo from a magazine.
The use of the name may trigger a claim under the right of publicity under which anyone (celebrity, quasi-celebrity, or non-celebrity) can sue if their name or image is used to imply endorsement of a product or service. If it's clearly a parody (or obvious that the title doesn't imply the quasi-celebrity's endorsement) you -- or should we say, "one" -- would likely prevail in a lawsuit under free speech principles. For example, John Gotti's name  has been used in the title of parodiesbiopics, and documentaries without any apparent repercussions. All of this information may prove academic, however, as the Dear Rich staff wonders whether a member of an organized crime family will bother pursuing intellectual property rights, when they have other tried and true methods of enforcement.