Clothbound War Names for Pay: Misappropriation or First Amendment Right?
At first glance, the glaring crimson letters seem to rest on a white background faded and splotchy with use. But a closer look will reveal that white blob to be a collection of letters—letters that spell the names of soldiers who died in, for and during the Iraq War.
More than 4,000 names grace the two sides of the shirt.
The white specks form a vivid contrast to the black cloth of the tee. Yet some of those names rest beneath a tomato shade. Put together, the red reads “Bush Lied” on the front side of the shirt and “They Died” on its back.
Dan Frazier-owned, Flagstaff, Ariz.-based, politically oriented t-shirt and sticker company “CarryaBigSticker” designed the garment in 2005.
Since then, soldiers, their families and legislators in various states such as Louisiana and Oklahoma have reacted strongly to the content of those shirts, managing to ban them in the latter two states in 2006.
Some of those families have supported Frazier’s pieces. Most have expressed outrage, claiming the use of those names to protest a war in which the dead had chosen to take part perverted the names themselves.
But Californian officials did not vocally take a stance on Frazier’s shirts and his use of dead soldiers’ names until recently.
Assemblyman Mike Duvall—Republican legislator representing the 72nd District, one that includes Orange, Yorba Linda and parts of Anaheim, among other areas—proposed Assembly Bill No. 585 in late February.
Only now, however, has the seven-page bill gained enough momentum that both Frazier and news outlets in the state capital have begun to pay attention.
The existing law states that using the signature, voice, name, likeness or photograph of a “deceased personality” for “commercial purposes” within 70 years of that person’s death without permission is an actionable offense.
The law explains that a “deceased personality” describes an individual whose signature, voice, name, likeness or photograph possesses “commercial value at the time of his or her death.”
For example, it would be against the law for the owner of a small curio shop to plaster Elvis’ face onto the mugs he sells without first being authorized to do so by whomever “owns” “The King’s” image.
Assembly Bill No. 585 (AB 585) seeks to “expand that definition of ‘deceased personality’…to include any natural person whose name, voice, signature, photograph or likeness has commercial value either at the time of his death, or because of his or her death.”
The reason these names have a political and monetary value for Frazier (he sells the shirts for $18; he does not give them away) is because they belong to those who have died. But as of now, and in California, the dead soldiers do not fall under the heading of “deceased personalities.”
That is, Frazier has the right to use those names on the garments.
Yet Duvall’s bill would make it illegal for Frazier to stamp them onto his shirts without first asking the soldiers’ families for approval. In other words, if the bill passes, the law will say Frazier invaded these soldiers’ privacy, misappropriating the names of deceased personalities for commercial purposes.
Misappropriation is a type of invasion of privacy. Having the option to call the use of a name or image “misappropriation” serves a dual purpose. It shields individuals from the suffering they would experience upon discovering another had put their image or name to commercial use while also taking care of any property interests famous figures would wish to maintain in their own personas.
In general, though, using the individual’s name or image if it is newsworthy will protect the person utilizing that name or image from liability. But that is not always the case. Much of the answer hinges on the subject’s reasonable expectation of privacy.
A public figure has chosen visibility and has, for the most part, waived his or her right to privacy. When it comes to the deceased, heirs may not file a suit on behalf of the dead, but misappropriation could present an exception.
Duvall’s bill would make putting the soldiers’ names on the commercially used t-shirts a misappropriation of their identity and a suit the soldiers’ families could bring against Frazier in California.
But the obstacle facing Duvall lies in the fact that while Frazier may, indeed, earn money from the shirts and, thus, the names of the soldiers, he has the constitutional right to Free Speech and may make a political statement should he choose to.
And Frazier views the proposed bill as a violation of his First Amendment rights.
“I would say I have a free speech right [to print the shirts],” he said over the phone. “One of the ironies here is that soldiers are fighting this war in Iraq, and they’re fighting on behalf of their country and the Freedom of Speech, but a California legislator is trying to take that away.”
However, Duvall’s office does not think this bill encroaches on Frazier’s rights at all.
Duvall would not comment on the matter. But his Chief of Staff, Carolyn Ginno, explained the assemblyman’s reasons for authoring the bill.
“This legislation is not about limiting free speech,” she wrote in an e-mail. “Assemblyman Duvall strongly supports free speech. AB 585 is about property rights, which are another fundamental American right.”
She continued by saying that “your identity is your personal property, and the bill simply closes a loophole in existing law that treats deceased individuals differently if they are celebrities.”
“This is not fair,” she concluded. “Whether you are alive or deceased, famous or not, you or your next of kin should have the right to approve or deny the use of your name or your identity.”
Yet Los Angeles-based First Amendment lawyer Ben Sheffner cannot really see a bill like AB 585 surviving because of the threats it poses to the constitutional right to free speech.
After hearing about the bill over the phone, he said it was likely “there would be very strong grounds to strike it down.”
“The names are clearly being used for a political purpose, not to sell candy bars,” he said. “First Amendment rights are at their height when you’re talking about political speech.
“The names of soldiers who have died are newsworthy,” he continued. “Those are matters of public interest.”
Sheffner made it further clear that though Frazier has put these names to a commercial use, that does not mean the law would view the printed names on the t-shirts as a misappropriation.
“Just because you make money off something doesn’t necessarily mean it will win against receiving protection,” he stated. “News stations all make money; they make a profit. But that doesn’t diminish their First Amendment rights.”
Those soldiers who have contacted Frazier have explained they were offended by the inclusion of their comrades’ names on an article that went against what their friends had believed in.
These men and women were not drafted, the soldiers told Frazier; they had enlisted in a war fully aware of potential consequences behind that action.
“As you would expect,” Frazier began, “I’ve heard mostly from [soldiers] who are upset. They’re trying to tell me what their fallen friend would have wanted. They think I’m out to make a buck. That is a myth.”
“We honor our loved ones by putting their names on tombstones,” he said. “Well this is a way of honoring them [the soldiers].”
He said he received many e-mails from the soldiers’ family members—many expressing unequivocal support for his t-shirts, others threatening to sue him if he did not take their relative’s name off the cloth.
“I feel terrible for the families,” he said. “I feel terrible for their loss. But they’re taking their pain and anger out on me, and I think that’s sort of misplaced. It just strengthens my resolve to do what I can to try to shorten the war and lessen the amount of suffering.”
But the lawyer, Ben Sheffner, explained the family’s suffering had no official bearing on either the fate of Frazier’s shirts or for AB 585’s chances of passing.
“There’s the legal question,” he said. “And then there’s the question of taste. I can certainly understand the objections families would have to this, that they would feel exploited. But one of the costs of the First Amendment is that we’re allowed to say things that are offensive to others.”
If, though, Frazier’s shirts bore a resemblance to the Three Stooges case, he would have to deal with misappropriation after all.
In 2001, artist Gary Saderup made a charcoal drawing of the Three Stooges—Larry Fein, Moe Howard and Curly Howard—then created lithographs of those drawings finally putting them onto t-shirts as well.
Comedy III Productions sued Saderup for what the company deemed an unauthorized utilization and misappropriation for commercial use of the deceased personalities’ images over which they had control.
Saderup claimed the First Amendment protected his right to free speech, and the amendment covered political commentary and satire, why would it not also protect an artist’s work?
Trial, appellate and superior court did not think it came down to that free speech, as Saderup had not transformed the images enough to constitute an exemption from misappropriation.
Frazier did not change the names of the soldiers, yes, but Sheffner did not think Frazier would run into the same problems Saderup had.
“I think there is more a First Amendment protection for what [Frazier] is doing,” Sheffner said. “There’s more than with the Three Stooges case.”
“These are just names,” he added. “The Three Stooges case [Comedy III Production, Inc. (Three Stooges) v. Gary Saderup, Inc] seems to apply to visual representations and not as much to words. Words are most literally speech, and that gets a very strong First Amendment protection.”
Sheffner said that even if the bill were to pass, it was unlikely that it would either stay active long or that Frazier would ultimately have to deal with a set of misappropriation cases or that he would have to stop selling his t-shirts in California.
“The court would have to decide,” Sheffner said. “But I’m very skeptical anything like that [bill] could survive a First Amendment test.”