Andy on the Road

6 October 2010

The Dido and the Astronaut

Filed under: knowyourrights,thecommonlaw — Andy @ 2:40 pm

When the Hollywood Reporter broke this story, they started their article with this:

Look closely at Dido’s album cover for “Safe Trip Home.” Spot the lawsuit?

Dido

The astronaut in that photograph is Captain Bruce McCandless II. This is him here:

(Image courtesy Wikimedia, and I’m going to go ahead and add that that Captain McCandless doesn’t endorse my blog.)

Capt. McCandless is a true hero of the NASA program, serving as CAPCOM during the Apollo 11 mission and logging more than 300 hours in space himself.  He is most famous for making the first untethered space flight in the NASA MMU.  NASA has a collection of photos from the flight, including this one:

(Courtesy NASA)

It doesn’t take too long to see how Dido took this shot and made the album cover above.  The thing is, Capt. McCandless feels as though he, the astronaut so portrayed in the photograph, is entitled to some form of remuneration (along with an injunction) by virtue of being portrayed therein.  And so, he sued.  Here’s the complaint (PDF).

It’s important to note that this is not a copyright claim.  NASA took the photograph, and under ordinary circumstances that’s enough to put the photograph in the public domain as a government work.  McCandless makes no claim to the contrary.  This is a question of personality rights.

I’m still learning about trademark and rights of publicity, so I don’t feel comfortable going into the legal weeds on this one, but I can’t help but think that all of the major personality rights cases – Waits v. Frito-Lay, Haelan Laboratories v. Topps Chewing Gum, Martin Luther King Jr. Center for Social Change v. American Heritage Products, even the often controversial Zacchini v. Scripps-Howard Broadcasting Co. – all dealt with portrayals of celebrities where you could actually tell who was being portrayed.  It was Tom Waits’s voice, the baseball players’ portraits, a sculpture of Dr. King, or a video of Zacchini, and in all of those cases it was easy to see or hear who it was.  There was no mistake about it. Until I started writing this article, I had no idea that who the astronaut was in the photograph there.  It’s just an astronaut.

And even if I did know that this is a picture from the first MMU flight, and that McCandless was the person portrayed, how can I tell that it’s him?  He’s a speck on that photograph. (I think that’s why that photograph is so powerful.)  When we talk about personality rights, we talk in reference to using someone’s name or likeness without their permission.  On Safe Trip Home you don’t know the astronauts name and you can’t see the astronaut’s face.  It is technically him, but the only way you know who this is would be if you are schooled enough to know the background significance of the picture.  I don’t even think the question fairly debatable – at best it’s a very serious uphill battle to prove it.

The complaint sees it differently:

29. The EVAtion Photograph [the photo used on Dido's album] includes the images of McCandless, and McCandless is further identified in part by distinctive red stripes on his pressure suit, as well as a mission patch on the chest of his life support system. NASA used such markings to visually distinguish McCandless from other crew members.

30. In the EVAtion Photograph, McCandless is further identified by and pictured with a distinctive over-the-shoulder Nikon camera, which has not been used on any other shuttle missions.

With all due respect to the drafters of the complaint: really?  You really think you can see all of these things in this photograph?  Can you make out the mission patch on the chest of Capt. McCandless’s life support system?  Even if you saw it close up, would your mind go to Capt. McCandless when you saw that patch?

The complaint also notes that the photograph appeared in news media, including this piece in Time magazine, identifying Capt. McCandless.  But again, unfair use of publicity rights more or less presumes that a consumer will see the celebrity portrayed and believe the celebrity to have supported, endorsed, or otherwise lent their goodwill to the product.  To put it in the words of the California Civil Code (under which McCandless makes one of his five claims) a photograph of a celebrity must be clearly depicted so that “one who views the photograph with the naked eye can reasonably determine that the person depicted in the photograph is the same person who is complaining of its unauthorized use.”  I don’t think this should be enough:

(McCandless, zoomed in as far as the original photo will allow.)

Now, the Complaint alleges that Dido did, in fact, mention in the liner notes that the photograph depicts McCandless.  In so doing they have used his name, and thus he at least gets in the door with a personality rights claim.  But that’s inside the liner notes of the album, and thus not used to sell or advertise the product.  In short, I don’t think that should count either.

I leave more analysis to those more suited, but I do want to note in closing that the complaint embraces what I consider a wholly separate action against Getty Images for publicity claims as well as some form of breach of contract claim for a personality license Getty entered into regarding this picture.  Why Getty is allegedly commercially licensing a public domain picture, and paying McCandless for the personality rights therein, remains a complete mystery to me.

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