Copyright and Publicity Rights in the Museum Context
On July 6, 2018, Fundació
Gala-Salvador Dalí (the Dalí Foundation) filed a complaint in in the United
States District Court for the Northern District of California alleging that the
Dalí17 Museum misappropriated Dalí’s name and likeness in its logo in order to
advertise and promote the museum and that Dalí17 illegally reproduced and
displayed copyrighted artworks online. The Dalí Foundation is located in
Figueres, Spain. In 1983, Spanish surrealist artist Salvador Dalí established
the Foundation, six years prior to his death, with the purpose of protecting
his name and work. The Dalí17 Museum of Monterey, California was opened in 2016
by real estate mogul Dmitry Piterman to house his private collection of Dalí’s
artwork. Two important rights the Dalí Foundation asserted in its complaint are
the federal law of copyright and California’s state law concerning the right of
publicity.[1]
The Dalí Foundation’s copyright and
right of publicity claims are strong, but they should not prevail. Denying
Dalí17 the use of Dalí’s artwork and his persona would not only restrict its
First Amendment freedom of speech, but it would also set a harmful precedent
for future legal disputes in the context of museums. The parties have opted for
private mediation and thus the outcome will not set precedent for the future of
museums. However, this case is worth examining because a claim such as this
prevailing could create unnecessary legal hurdles for museum operations.
Copyright
The Dalí Foundation has a valid copyright claim. It asserts that Dalí17 has committed copyright infringement under federal law 17 U.S.C. § 501 because it has reproduced and displayed Dalí’s artwork on its website and social media pages in order to promote the museum. The Foundation is entitled to protect its reproduction and display rights because the United States allows copyright to survive the author for 70 years after death and Salvador Dalí assigned his copyright to the Foundation.
The reason that the Foundation should not prevail on its copyright action is because Dalí17’s use of Dalí’s artwork is fair. Fair use is an affirmative defense to a copyright infringement claim. Courts use four factors to determine if a use is fair: (1) the character of the use, which often places emphasis on the use being transformative of the original work’s character, (2) the nature of the copyrighted work, (3) the amount and substantiality of the use, and (4) the market harm caused by the use. Factors 1 and 4 are typically weighed the most heavily in determinations of fair use. The Association of Art Museum Directors’ Guidelines for the Use of Copyrighted Materials and Works of Art by Art Museums specifies that if a museum wishes to include a copyrighted work in its promotional materials, the use must be fair. The issue of what qualifies as fair use in a museum’s promotional materials has not yet been analyzed by a court, yet Dalí17 has a strong chance of prevailing on a fair use claim because courts have greatly expanded the fair use doctrine in recent years, especially in the art context.[2]
Dalí17 has a strong case for fair
use when analyzed under the test’s four factors. Factor 1 weighs in favor of
Dalí17 because although the purpose of the use was commercial, it is also
educational since museums do a public service by educating patrons in art
history and culture. Furthermore, the use is transformative because it serves
to show the public what kind of museum Dalí17 is, whereas the original use was
expressive and artistic. Factor 2 does not favor fair use because the
copyrighted work is creative, but courts have historically downplayed this
factor in fair use determinations. Factor 3, although not weighed heavily by
courts, favors fair use because an online image of Dalí’s work is smaller and
less detailed than the original, and therefore does not reproduce or display
the heart of it. Factor 4 weighs in favor of fair use because reproductions on
the Internet do not usurp the market for Dalí’s artwork. There may even be an
economic benefit in displaying Dalí’s work online because it may widen
enthusiasm for Dalí and invigorate the market for Dalí’s work.
Publicity Rights
The Dalí Foundation also has a valid right of publicity claim. The Foundation asserts its right of publicity under California Civil Code § 3344.1, the California Celebrities Rights Act, which protects a person’s name and likeness. The Foundation claims that Dalí17 has misappropriated Dalí’s name and face in its logo in order to promote the museum and sell merchandise, therefore exploiting their commercial value.
While the Foundation may prevail on
its claim because California has broad rights of publicity, the state of
California has expanded these rights too far. Relevant to the case at hand, the
California Supreme Court held in Lugosi v. Universal Pictures (1979) that the
right of publicity was not assignable and does not survive upon death. However,
the California Legislature nullified this decision in 1985 by granting the
right of publicity to a celebrity’s heirs with the Celebrities Rights Act. This
creation of a post-mortem publicity right restrains the First Amendment and
hurts the public interest.
Even though the California
Legislature has granted broad publicity rights, California courts do still
allow reasonable limitations on them. The Supreme Court of California has
allowed a First Amendment defense to the right of publicity that centers on
transformative use – a test that resembles factor 1 of the fair use analysis.
Dalí17 meets this standard because its use was transformative; Dalí’s name and
likeness were used not as expression but as indicators of what the museum
contained.
Another reason the Dalí Foundation
should not prevail on its right of publicity claim is the importance of keeping
laws consistent internationally. The Foundation was involved in a similar suit
in Spain in June, 2016. The Civil Chamber of Spain’s Supreme Court held that
the Foundation did not have standing to protect Dalí’s image because Dalí’s
right to his own image expired with his death. Because the world is becoming
increasingly interconnected, it serves the United States to comply with the
Spanish decision on this legal issue.
Without Dalí17’s use of Dalí’s copyrighted work in its promotional materials or its use of his name and likeness in its logo, the museum could not as efficiently inform the public of its contents and purpose. As the parties move into private mediation, the art world must keep this in mind for future museum litigation.
When copyright and publicity rights come into tension free speech, the law should not stifle speech as a matter of public policy. It is dangerous to suppress speech, especially in the context of museums. Museums serve the community by acting as education and entertainment. Society is better served when art is shared and museums are held to realistic standards.
Maggie Reinfeld is a J.D. candidate, 2020, at NYU School of Law.
[1] The Dalí
Foundation also alleged that Dalí17 violated the federal law of trademark, the
federal law of unfair competition and false designation of origin, as well as
California’s state law of unfair competition. These claims will not be
discussed here.
[2] An example of
this expansion is artist Jeff Koons’ successful fair use defense in Blanch v.
Koons (2006).
