Siblings Use Publicity Rights To Try To Block Sister From Blogging About Mom–In re Reynolds

For lawyers, family feuds are gold. There’s nothing quite as vituperative as family members squabbling in court. For the lawyers, familial acrimony translates into irrational overspending on legal fees. Ca-ching!

Today’s family feud involves a mom, Lois Reynolds, and her three kids, sisters Sylvia and Robin and brother Doug. Mom died in January 2011. A few months before mom’s death, sister Robin wrote about end-of-life issues and published the article in a (now-defunct?) online publication Phoenix Woman. I thought the article provided fairly straightforward observations about caregiving to the elderly, but siblings Sylvia and Doug were “shocked, hurt and deeply angry” about the article. Sylvia had a lawyer send Robin a demand that Robin:

refrain from making any ‘[p]ublication actually or reasonably perceived to be about or relating to Lois (including without limitation Lois’s name, likeness and description…).’

(Please re-read that demand again. Say what???). Undeterred, on Mother’s Day 2011, Robin “posted a blog tribute to Lois that included a photograph of herself with her mother.” In response, the estate listed, as one of its assets, a legal claim against Robin for violations of mom’s publicity rights, which Robin challenged in the estate proceedings.

Arizona doesn’t have a generally-applicable publicity rights statute, but it apparently recognizes a common law publicity right. The Arizona appeals court hews closely to the Restatements (Third) of Unfair Competition to map the contours of the common law right. The court says that the common law right isn’t limited to celebrities, claims arising before a person’s death remain enforceable post-mortem, publicity rights are descendible to heirs (implying, though clumsily worded, that a person’s publicity rights outlive the person for an unspecified period), and a person doesn’t need to exploit his/her publicity rights during his/her lifetime to create post-mortem rights.

All of the appellate court’s ruminations about the scope of Arizona’s common law publicity rights seem to be dicta, however. Citing Restatements Sec. 47, the court says that publicity rights don’t restrict “the use of a person’s identity in news reporting, commentary, entertainment, works of fiction or nonfiction, or in advertising that is incidental to such uses.” In this case:

Sylvia and Doug object to Robin’s writings because they disclose personal details about their mother. Viewed in that fashion, however, the commentaries are on the order of an unauthorized biography, which plainly may not give rise to a claim for violation of the right of publicity.

The fact that Robin may have published editorial content for financial gain doesn’t change the analysis. Therefore, Robin wins in court.

This case demonstrates why publicity rights are one of the hottest areas of IP litigation right now. Its doctrinal boundaries are so amorphous/shapeless that plaintiffs often feel they’ve got a good case when: (1) the defendant makes a unwanted reference to a person, and (2) someone makes money (and to some plaintiffs, even this second element is optional). Furthermore, in the class action context, statutory publicity rights are plaintiff-friendly because they overcome Article III challenges and can offer statutory damages and attorneys’ fees. We’re seeing a lot of publicity rights action outside the paradigmatic context of depicting someone in ad copy.

This case is part of a larger trend of plaintiffs misusing IP laws to scrub online content. For example, as I’ve noted repeatedly, plaintiffs keep trying to use copyright law as a privacy statute. See also our amicus brief in Garcia v. Google and this recent post from Techdirt. We also saw a clump of cases where companies tried to misuse trademark law to suppress consumer reviews (e.g., the PissedConsumer lawsuits). These types of lawsuits, essentially trying to turn IP law into privacy law, have nothing in common with the traditional justifications of IP protection, such as making sure artists “get paid” or ensuring “investments in quality.”

Finally, this case nicely illustrates the problematic nature of any “right to forget.” In this case, the siblings wanted Robin to stop talking publicly about her mom. But it’s impossible for Robin to tell her life story, or to explain her thoughts about end-of-life issues, without discussing her first-hand experiences with her mom. If Robin can’t publicly talk about mom, she loses her ability to self-express–and a huge chunk of her autonomy. A “right to forget” law implicitly treats people as islands isolatable from the rest of society, but our life stories are so deeply intertwined with each other that suppressing one person’s story necessarily distorts many others.

Case citation: In the Matter of the Estate of Lois Catherine Reynolds, 2014 WL 1633034 (Ariz. Ct. App. April 24, 2014)