Travis Waller, MJLST Managing Editor
In 2013, Prof. Micheal Murray of Valparaiso University School of Law published an article with MJLST entitled “DIOS MIO—The KISS Principle of the Ethical Approach to Copyright and Right of Publicity Law”. (For those of you unfamiliar with the acronyms, as I was previous to reviewing this article, DIOS MIO stands for “Don’t Include Other’s Stuff or Modify It Obviously”, just as KISS stands for “Keep it Simple, Stupid”). This article explored an ethical approach to using copyrighted material or celebrity likeness that has developed over the last decade due to several court cases merging certain qualities of the two regimes together.
The general principle embodied here is that current case law tends to allow for transformative uses of either a celebrity’s likeness or a copyrighted work – that is, a use of the image or work in a way that essentially provides a new or “transformative” take on the original. At the other extreme, the law generally allows individuals to use a celebrity’s likeness if the usage is not similar enough to the actual celebrity to be identifiable, or a copyrighted work if the element used is scenes a faire or a de minimis usage. Ergo, prudent advice to a would-be user of said material may, theoretically, be summed up as “seek first to create and not to copy or exploit, and create new expression by obvious modification of the old expression and content”, or DIOS MIO/KISS for the acronym savvy.
The reason I revisit this issue is not to advocate for this framework, but rather to illustrate just how unusual of bedfellows the regimes of copyright and “rights of publicity” are. As a matter of policy, in the United States, copyright is a federal regime dedicated to the utilitarian goals of “[p]romot[ing] the progress of science,” while rights of publicity laws are state level protections with roots going back to the Victorian era Warren & Brandies publication “The Right to Privacy” (and perhaps even further back). That is to say, the “right to publicity” is not typically thought of as a strictly utilitarian regime at all, and rather more as one dedicated to either the protection of an individual’s economic interests in their likeness (a labor argument), or a protection of that individual’s privacy (a privacy tort argument).
My point is, if, in theory, copyright is meant to “promote science”, while the right to publicity is intended to either protect an individual’s right to privacy, or their right to profit from their own image, is it appropriate to consider each regime under the age-old lens of “thou shalt not appropriate?” I tend to disagree.
Perhaps a more nuanced resolution to the ethical quandary would be for a would-be user of the image or work to consider the purpose of each regime, and to ask oneself if the usage of that work or image would offend the policy goals enshrined therein. That is, to endeavor on the enlightened path of determining whether, for copyright, if their usage of a work will add to the collective library of human understanding and progress, or whether the usage of that celebrity’s likeness will infringe upon that individual’s right to privacy, or unjustly deprive the individual of their ability to profit from their own well cultivated image.
Or maybe just ask permission.