Great-Grandma Gets Grumpy, Fights for her Rights (of Publicity)

Posted by | October 14, 2011 | Disputes, General | 2 Comments

A friend sent me an article about a great-grandmother who was irked over the use of her image in an ad supporting an Ohio voter referendum, Issue 2.  If passed, Issue 2 would prohibit unions from exercising their collective bargaining power.  Excuse me for a second, but what exactly is the point of a union if you take away its collective bargaining power?  Isn’t the power to negotiate on behalf of its members what makes a union, well, a union, and not just a trade association?  Or am I missing something?

Ok, back to Grammy.  An Ohio woman named Marlene Quinn was filmed in a 60 second political ad commending Cincinnati firefighters for rescuing her great-granddaughter from a fire (raging, of course), and imploring fellow Ohioans to vote No on Issue 2.  Ohio Issue 2 states:

[framed_box]

A majority yes vote is necessary for Amended Substitute Senate Bill No. 5 to be approved.

Amended Substitute Senate Bill No. 5 is a new law relative to government union contracts and other government employment contracts and policies.

A “YES” vote means you approve the law.
A “NO” vote means you reject the law.

[/framed_box]

Amended Senate Bill 5 is a 304 page beast of a document that amends 160 different Sections of the Ohio Revised Code, while also enacting 13 new sections and repealing 9 current sections thereof in order to: [framed_box]

make various changes to laws concerning public employees, including collective bargaining, salary schedules and compensation, layoff procedures, and leave. [/framed_box]

I was an Ohioan once, a native even.  If I lived there still I would vote no on issue 2 out of principle . . . it’s too damned long.

Ms. Quin, however, objects to it because she believes that eliminating the ability to bargain for staffing minimums means firefighting crews could be paired down to dangerously low levels.  She is quoted as stating, “If not for the firefighters we wouldn’t have our Zoey today.”  The No on Issue 2 ad for which she agreed to be recorded is sponsored by We Are Ohio.  The group that incorporated Ms.Quinn’s image in its ad without her consent is Building a Better Ohio (BBO), which apparently plans to build a better Ohio by first burning a few bridges.  My favorite characterization of this is an article on ThinkProgress titled, “In Ohio Ad, Right-Wing Group Splices Pro-Union Grandma To Fake Endorsement For Anti-Union Law.”  Grandma-splicing. Yikes!

Although 30+ stations so far have pulled the misleading ad according to an article on Huffington Post (the We Are Ohio website states that 33 stations have pulled the ad), We are Ohio is running a capital campaign to raise $22,000 by tomorrow to keep running its ad in the two markets (Cincinnati and Cleveland) where the misleading ad still has not been pulled.

A side by side comparison of excerpts of the two ads may be seen here and the ads run back to back may be seen here.  It is indisputable that: (a) BBO used Ms. Quinn’s likeness without her consent and (b) BBO used We are Ohio’s video without its consent.  Ohio recognizes a statutory right of publicity, codified (made into statutory law) at Ohio Revised Code Annotated 2741.  Federal courts can grant temporary restraining orders (TROs) for copyright infringement, though copyright registration is a prerequisite for standing (the ability to bring a suit for copyright infringement).  While Ms. Quinn and We are Ohio have the legal right to fight this, they may not have the resources to do so, so I am hopeful that they will find pro bono counsel to assist them.

BBO seems to have overlooked a couple key issues in the running of its ad — right of publicity law, copyright law and perhaps most importantly, public relations.  While BBO is likely to claim fair use, I just don’t see it.  Even if it somehow succeeded on that issue, I don’t imagine that will repair the reputational damage it has done.

About Lara

Lara Pearson is a trademark attorney with Exemplar, where she also serves as the firm's Sustainability Steward. Lara's legal practice focuses on trademark and copyright law, including: intellectual property audits; trademark search & clearance; trademark and copyright registration & maintenance; intellectual property transfers; transactional work; and dispute resolution, including litigation when necessary. Lara primarily represents other social enterprises -- those leveraging their businesses and brands as catalysts for positive social and environmental change. Such businesses engage in CSR (Corporate Social Responsibility) to have a positive "triple bottom line" of people, planet and profit. As Exemplar's Sustainability Steward, Lara works with others in her law firm to measure and reduce the firm's carbon emissions and encourage engagement in social responsibility initiatives, including pro bono legal work and volunteering. Lara is a proud member of the Social Venture Network. Brand Geek is a member of 1% for the Planet and a Certified B Corporation, whose Incline Village office is certified under the regional Keep the Sierra Green program. Exemplar Companies is the most innovative professional services firm in the New Economy. Our unique, diversified expertise spans the disciplines of corporate law, business advisory, and capital/investment banking to better meet the needs of our high-potential customers. We have assembled a comprehensive suite of service to meet the complex issues facing companies in today’s challenging business environment. Our unique, holistic approach ensures the growth and success – and greatly increases the competitive advantage - of our customers. The Exemplar team is comprised of knowledgeable, highly skilled experts in a wide range of industries and disciplines. They work closely with our customers to provide trusted advice, incomparable support, expert guidance and the ultimate competitive advantage as they accelerate their businesses and position themselves to transform industries.

2 Comments

  • I think you missed the significant First Amendment defense. While not very clearly or well-done, the BBO ad was intended as a rebuttal to the We Are Ohio ad – “Grammy said this but Grammy’s wrong, this is why a ‘no’ vote hurts firefighters.” It should have been stated more expressly, and because it wasn’t it may mean that BBO loses in the end, but I think it was intended as a rebuttal. A First Amendment argument is a defense to all the claims.

    • Lara says:

      Thanks for reading and commenting, Pam!

      I agree with you. Had the ad made clear that it was a rebuttal then I think there clearly are 1st Amendment & fair use defenses.

      In this case, however, I think the ad misleadingly makes Ms. Quinn’s video seem like an endorsement supporting Issue 2 in violation of her right of publicity and We are Ohio’s copyright.

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