Right of Publicity Multiple Choice


In this post you will find a handful of multiple choice exam questions from prior years. The questions are reproduced here completely. However, please note that while the exam included pictures and photographs, they were fixed to a corporeal page and lacked the movement you may find below. 



The following fact pattern applies to Multiple Choice questions 4 and 5:

The American film actor Clark Gable was born William Clark Gable on February 1, 1901 in Cadiz, Ohio. He is known to have appeared as an extra in 13 films between 1924 and 1930; appeared in a total of 67 theatrically released motion pictures; appeared as himself in 17 "short subject" films; and he narrated and appeared in a World War II propaganda film entitled Combat America, produced by the United States Army Air Forces. During his life, and due to his incredible success and notoriety, he was known as "The King of Hollywood," or more simply as "The King." Following the death of his third wife, actress Carole Lombard, Clark joined the U.S. Army Air Forces. During World War II, Clark flew in five combat missions and earned the Air Medal and the Distinguished flying cross for his service. his death, unrelated to his war efforts, came ten days following a massive heart attack on November 16, 1960. He died in the Hollywood Presbyterian Hospital surrounded by close family and friends. Though he died in California, Clark remained deeply tied to his Ohioan heritage, keeping a home in Cadiz, and settling his estate in Ohio following his death. Ohio is one of two states to protect the publicity rights of its residents for an additional 100 years after death.

QUESTION 4: On January 1, 2015, Image Comics published issue #4 of the fictional criminal noir drama The Fade Out, written by Eisner Award-winning author Ed Brubaker, and set in 1940's Hollywood following the Golden Era of film. The Fade Out #4 includes the following panels:

In the pages following the panels, the man with the cigarette is only referred to as "The King." The King never appears in The Fade Out again, and only appears in a total of six panels in issue #4. Gable's estate sues Image Comics and Ed Brubaker for a misappropriation of Gable's right of publicity. What is the most likely holding of the court?

  • A.  The right of publicity does not attach where a fictionalized account of an event involving a public figure is expressed in such a way that it is evident to the public that the events so depicted are fictitious.
  • B.  Brubaker's use of Clark Gable's name and likeness is literal, and is not within the context of a real historical event, but a fictitious event.
  • C.  Under the predominant use test, Brubaker's use of "The King" predominantly exploits Clark Gable's image for its commercial value.
  • D.  Brubaker's use of "The King" is fair use, because the depiction of Clark Gable in The Fade Out #4 only uses enough of Gable's identity to call him to mind, and then uses literary and artistic techniques to mock or criticize Gable directly. 

QUESTION 5:  On September 8, 2015, Comedy Central broadcast the second episode of the third season of its critically mentioned series Drunk History. In the episode, Josh Hartnett portrays a young Clark Gable during his war-time exploits, while a narrator drunkenly attempts to recite Gable's Wikipedia page from memory. Out for blood, the Gable estate files a second suit, this time against Comedy Central, alleging a violation of Clark's right of publicity. What is the most likely holding of the court?

  • A.  Under the law, only expressions of fact, not the facts themselves are protected.
  • B.  Hartnett's portrayal of Clark Gable is sufficiently transformative to be protected by the doctrine of Fair use.
  • C.  The knowing use of intentionally drunk individuals to read from Clark Gable's Wikipedia page and broadcast the results as fact, without any attempt to discover the truth behind the fact, constitutes actual malice.
  • D.  Unlike the goodwill associated with one's name or likeness, the facts of an individual's life possess no intrinsic value that will deteriorate with repeated use.

QUESTION:  In 1984, legendary comic-book man Alan Moore created the English antihero and occultist John Constantine. Constantine was first introduced as an influential supporting character in The Saga of the Swamp Thing, where he was received to such critical acclaim that he appeared again in Neil Gaiman's award-winning comic The Sandman, and eventually his own comic Hellblazer which enjoyed a continuous 25-year run. According to Moore, "the character only existed because [the writers of The Swamp Thing] wanted to do a character that looked like Sting." 

When asked what he thought about John Constantine being modeled after him, Sting stated, "[t]hat's not me. That's the public domain creation . . . The mistake [celebrities] make is they confuse that thing that's been created by them and by the media for reality . . . That character is someone else. It's not me. And thank God."

In an attempt to bring the incredibly successful character to a broader fan-base, and cash in on the comic-book movie fad, Warner Bros. hired Keanu Reeves to play the character in a big-budget adaptation of the Hellblazer comic titled Constantine. Upset that the character modeled after him would be played by an individual entirely lacking in talent, Sting sued Warner Bros. to prevent distribution of the film on the basis that it violated his right of publicity. Sting will prevail in his suit against Warner Bros. because the adaptation is an appropriation of his likeness.

  • A.  True
  • B.  False

QUESTION:  On July 14, 2014, Former New York Mayor Rudi Giuliani filed a Motion to Dismiss Manuel Noriega's Complaint against Call of Duty developer Activision under California statutory and common law violations of his right of publicity. The introduction to Activision's motion reads as follows:

Manuel Noriega was the military dictator of Panama during an especially turbulent period in the history of that country and the region. He was tried and convicted in his home country, as well as in the U.S. and France, for, among other atrocities, murder, drug-trafficking, and various human rights violations. Noriega's ignominious exploits earned him multiple prison sentences (including his current incarceration in Panama), along with a well-deserved place of infamy in history's rogues' gallery of murderous tyrants.
Incredibly, Noriega now claims that his wild misdeeds also earned him the exclusive right under California law to control his depiction in expressive works of art set against the backdrop of his reign. in particular, Noriega asserts that Activision's critically acclaimed videogame, Call of Duty:  Black Ops II ("Black Ops II"), violates his purported "right of publicity," because a Noriega character appears in a small portion of the game's fictionalized depiction of undercover missions in Panama and elsewhere in Central America during the late 1980's.

Mr. Noriega does not dispute any of the facts above. Without consideration for jurisdiction or venue, how will the court most-likely decide Activision's motion to dismiss?

  • A.  Motion granted. The right of publicity does not attach where a fictionalized account of an event involving a public figure is expressed in such a way that it is evident to the public that the events so depicted are fictitious.
  • B.  Motion denied. Activision's use of Mr. Noriega's name and likeness is literal and is not within the context of a real historical event, but a fictitious event.
  • C.  Motion denied. Under the predominant use test, Activision's game predominantly exploits the commercial value of Mr. Noriega's identity.
  • D.  Motion granted. Under copyright law, only expressions of fact, not the facts themselves, are protected.