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June
11, 2003
Spike Lee v. Spike TV
Self-Branding
and the Right of Publicity
By JULIE HILDEN
Spike Lee is a renowned filmmaker whose body of
work includes the landmark features "Do the Right Thing"
and "Malcolm X," as well as the acclaimed civil rights
documentary "4 Little Girls." His is a household name.
Spike TV--slated for a June 16 premiere,
and currently known as TNN: The National Network--is, according
to owner Viacom, Inc., "the first network for men."
The relaunched station will feature an animated cartoon voiced
by Pamela Anderson called "Stripperella," as well as
the "Ren and Stimpy adult party cartoon." Other original
programming will focus on cars, cool technology, men's health,
and the stock market.
The contrast between the two Spikes may
seem stark. But it becomes a little less so in light of the fact
that Lee has also worked as a pitchman for a number of companies--most
famously, Nike--and, at times, produced less serious-minded fare
such as "She's Gotta Have It," "Girl 6,"
and "Summer of Sam." He also is a partner in an advertising
agency called SpikeDDB.
Given these affiliations, it isn't entirely
unlikely that some viewers might believe, or at least wonder,
if Spike Lee might be the man behind Spike TV.
For this reason, on June 2, in New York
state court, Lee sued TNN, its corporate parents MTV and Viacom,
and its President,  Albie Hecht, alleging "right of
publicity," trademark, and other New York law claims. In
addition to seeking an injunction prohibiting the defendants
from using the name Spike TV, Lee also seeks money damages.
It might seem that Lee's suit is simply
an act of hubris--an attempt to virtually copyright the name
"Spike." But in fact, the suit may have some merit,
and for this reason, Spike TV will be foolish if it fails to
seriously consider choosing a new name.
Indeed, Lee was smart to sue now, because
the defendants still have time to change Spike TV's name, and
the corresponding advertising, before its launch later this month.
Afterwards, once viewers get invested in the branding, the defendants
will have far more to lose.
An Apparent Admission
of Intent to Capitalize on Lee's Reputation
The most devastating fact in Lee's favor
is this: Hecht apparently admitted in interviews that Spike Lee
was one of his major inspirations for his choosing the name "Spike
TV." According to the Philadelphia Inquirer, Hecht's role
models were "Spike the macho vamp[ire] in Buffy the Vampire
Slayer; [and] directors Spike Lee and Spike Jonze."
To be fair, Hecht is also quoted, in
the same article, as saying he wanted to convey that Spike TV
would be "cool," and "aggressive,""
as in, "to spike a volleyball." But clearly, Spike
Lee's image was among the connotations Hecht wanted "Spike
TV" to conjure up.
I believe that this admission makes Lee's
case, which otherwise might seem to verge on megalomania, much
more sympathetic. It shows that it is not just Lee himself who
believes that "Spike TV" connotes "Spike Lee";
the President of Spike TV himself seems to think so, too.
Hecht is also quoted by the Inquirer
as saying that, in seeking a new name for TNN, "[w]e were
looking for a name that would reflect the attitude we wanted--smart,
sexy, active, irreverent, slightly aggressive and unapologetically
male." Spike Lee's complaint points that that all of these
adjectives fit his own image as well.
On the other hand, these adjectives are
such bland positives that they could also be applied to Spike
Jonze, or numerous other public figures. (After all, few men
are "apologetically male.") Somewhere out there, there
may be celebrities whose personas suggest they are stupid, unsexy,
passive, obedient, and timid, but they are few and far between.
That brings us to the key issue in the
case: the likelihood of confusion. Will viewers believe Spike
Lee is behind Spike TV? If so, proof of that fact--through surveys
or other, similar evidence--would show the very type of confusion
that trademarks are supposed to prevent.
The Importance of
Proof of Confusion To Several Of Lee's Claims
The confusion issue is often the pivotal
issue of a trademark case. After all, makers may have difficulty
claiming damages unless there is consumer confusion with respect
to the distinction between trademarks.
For instance, there is no consumer confusion
as to the separate sources of Candies shoes and M&M chocolate
candies--which, in any case, target different markets--so it
doesn't matter that the same word is employed in both trade names.
But suppose a company that had nothing to do with Candies shoes
began to make "Candies handbags."
Confusion on the part of consumers would
predictably ensue. Moreover, the company producing Candies shoes
could rightfully complain about that confusion, for several reasons.
First, they invested resources to develop
the "Candies" name, and now someone else is profiting
off that name for free. Second, if "Candies handbags"
are of poor quality, or simply don't fit with the "Candies
shoes" image, the use of the trademark could harm the Candies
brand. And third, what if Candies shoes decides in the future
that it would like to make handbags? It won't be able to use
its own, carefully-developed brand name to do so.
As with most trademark cases, the Spike
Lee/Spike TV case will, if it does not settle, probably focus
on the "likelihood of confusion" issue. To prove his
case, Lee will likely rely on affidavits from influential persons
in the relevant industries, and on survey evidence. With this
evidence, he will seek to show that both important decisionmakers,
and the general public, will suffer from confusion deriving from
the misimpression that Spike Lee might be behind Spike TV. This
is typical for a trademark suit.
Whose Right of Publicity
Is It, Anyway?
What is interesting about Lee's lawsuit,
however, is that confusion will also implicitly be an issue in
the "right of publicity" case, as well--and that is
a rare event. (For more on the "right of publicity"--a
person's right to control the use of his or her name or likeness--see
my earlier column on Vladimir Putin and the Harry Potter movie
character Dobby the house elf.) Here is where Lee's case might
prove tenuous--though, of course, he only needs to prevail on
one of his claims to succeed in court.
In most right of publicity cases, the
use of the celebrity's name or image is quite blatant, because
a positive endorsement or association is sought. A classic right
of publicity case would be a claim of false endorsement such
as "Spike Lee loves Spike TV."
Yet even in those right of publicity
cases in which the reason for using the celebrity's name or image
is not endorsement, it's pretty clear, at least, which celebrity's
name or image is being invoked. Consider an ad that said "Spike
Lee would never watch Spike TV." It wouldn't be an endorsement,
of course, but it would still lead to a right of publicity claim.
That doesn't mean, however, that the
claim would survive; it might be dismissed on constitutional
grounds. Depending on the way the ad was presented, it might
be protected by the First Amendment as parody, or as commentary
on Lee's career. For instance, a "Do the Wrong Thing: Watch
Spike TV" parody that incorporated a number of features
of Lee's movie in clever ways would almost certainly count as
parody.
But what's unusual about Spike Lee's
right of publicity claim is that it isn't crystal clear that
it is actually his name, in particular, that is being appropriated.
Because of this lack of clarity, the same kind of confusion issue
that arises in the trademark case could crop up again in the
"right of publicity" case.
In order for a judge to rule in Spike
Lee's favor, the judge must find that Lee will be understood
by the general public as being the "Spike" in "Spike
TV." But how can that be proven? Ideally, by the same kind
of evidence--surveys, affidavits, and so on--that Lee would use
to establish his trademark cases. But in reality, because of
the way right of publicity cases usually proceed, a judge may
have to simply decide the question as a matter of law instead.
The judge who does so will have to think
about this strange twist: Does the name "Spike TV"
violate Spike Lee's "right of publicity," despite the
fact that there are many connotations to the name "Spike,"
of which his name is only one of the most prominent?
The importance of this question is aggravated
by the fact that, in this case, it seems Spike Jonze could just
as easily sue, as could Spike Lee. Granted, Jonze's image may
be less prominent than that of Lee, who has appeared in numerous
ads. But for the law's purposes, that doesn't matter.
A lesser celebrity than Lee, and, indeed,
an ordinary person may also sue to vindicate his or her "right
of publicity." After all, the right of publicity is ultimately
a variant on state law rights of privacy; it has nothing to do
with celebrity. And it has everything to do with the ability
to control unwanted misuses of one's name or likeness, a power
non-celebrities want and need, too.
Moreover, damages for infringement of
the right of publicity may, depending on the relevant state's
law, be based on the infringer's profits--not damage to the image
of the person who invokes the right. Thus, if someone takes your
non-newsworthy photo on the street, and uses it in a pure advertising
campaign, you may be able to capture their profits even though
your picture never appeared anywhere but in a family album before.
Thus, Jonze, too, could sue. Does that
make a difference? The issue is a subtle one.
An ad saying "Spike Lee and Spike
Jonze love Spike TV" would plainly violate the right of
publicity of both filmmakers. Thus, right of publicity claims
are not necessarily mutually exclusive.
On the other hand, an argument that the
movie "Heathers" violated the right of publicity of
Heather Locklear would have been extremely unlikely to succeed--despite
the fact that she might well have been the first Heather to come
to mind. After all, so many other Heathers might come to mind,
too.
In sum, if Lee's "right of publicity"
claim fails, it might be for a very basic, simple reason: A finding
that it wasn't really only his own name, in particular, that
was used.
The Perils and Advantages
of Self-Branding
Some may consider Lee's suit to be at
best an exercise in vanity. But those who take this view should
consider that, in deciding, in effect, to brand his own name
(which is, after all, a name he adopted--not his given name,
which is Shelton), Lee has created risks as well as rewards.
Spike Lee's name is now publicly interlinked
with numerous films, ventures, and endorsements. Any scandal--whether
personal, or business-related--that sticks to the "Spike
Lee" name is likely to haunt not only Lee himself, but all
of his enterprises. One has only to look to Martha Stewart's
current troubles to see the perils of self-branding.
Since Lee has decided so strongly to
stand behind his own name and image throughout his career, he
shouldn't now be faulted for standing up for the integrity of
that name and image in court. Whether he'll win his somewhat
unusual suit is another matter, but Lee shouldn't be blamed,
or mocked, for trying to protect an image that is, in a way,
as much one of his creative works as is each of his films.
Julie Hilden
practiced First Amendment law at the D.C. law firm of Williams
& Connolly from 1996-99. Currently a freelance writer, she
published a memoir, The
Bad Daughter, in 1998. Her forthcoming novel Three
will be published in the U.S. in August 2003 by Plume Books,
in the U.K. by Bantam, and in French translation by Actes Sud.
This column originally appeared on Findlaw's
Writ.
She can be reached at: julhil@aol.com.
Julie's new
website is a lot of fun. Have a look.
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