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Hastings Communications and Entertainment Law Journal

Abstract

In 1992's highly controversial White v. Samsung Electronics America, Inc., the United States Court of Appeals for the Ninth Circuit refused to create a parody exception to the common law right of publicity for a parodic advertisement. Almost all of the early legal commentary on White criticized the Ninth Circuit for not having created such an exception, most of it urging an emulation of federal statutory copyright law's fair use exception. In 1993's Cardtoons v. Major League Baseball Players Ass'n, the Northern District Court of Oklahoma similarly refused to create a parody exception to the right of publicity for an actual, "for-sale" parodic product. In 1993's subsequent Campbell v. Acuff-Rose Music, Inc., the Supreme Court accepted a fair use, parody defense to a copyright infringement claim for a "for-sale" parodic product. In 1994, because of Campbell, the Oklahoma District Court reconsidered Cardtoons and created a parody exception to the right of publicity but, distinguishing White, explicitly excluded advertising from the scope of such an exception. The Baseball Players' appeal of the Cardtoons reconsideration is pending before the Tenth Circuit Court of Appeals.

The Tenth Circuit, or any other court considering the scope of a parody exception to the right of publicity in the future, should consider both the language in and logic behind extended obiter dicta in the Supreme Court's 1993 City of Cincinnati v. Discovery Network, Inc. decision regarding parity between the First Amendment protection to be accorded advertising as a form of commercial speech and other types of speech. Parodic advertising should be accorded as much First Amendment free speech protection under any parody exception to the common law right of publicity as that given to any other type of commercial speech. Moreover, parodic advertising should not be peremptorily excluded from the scope of such an exception merely because it is advertising.

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