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THE WALL STREET JOURNAL / CALIFORNIA
Image-Use Law Wouldn't Cover Political Ads
By Ryan Tate
Staff Reporter of The Wall Street Journal

07/28/1999
The Wall Street Journal
CA2
(Copyright (c) 1999, Dow Jones & Company, Inc.)

In Chicago, they say that ward bosses collect votes from graveyards. But here in California, politicians are looking to win elections with a different sort of help from beyond.

A bill that has been sailing through the state Legislature would restrict how writers, filmmakers and lyricists can portray dead personalities -- but allow politicians to continue to exploit images of the deceased in their election materials.

The measure, introduced by Senate President pro Tempore John Burton, a San Francisco Democrat, would forbid the alteration or manipulation of a deceased's "name, voice, signature, photograph or likeness . . . . in a manner that is false" but is nonetheless "portrayed as factual" -- unless the personality's heirs consent.

Existing restrictions apply only to advertisements. And current law exempts plays, books, magazines, songs, films, television shows, radio programs -- and political campaigns.

Senate Bill 209 would delete all but the last of those exemptions. "I think it's certainly curious," says Vans Stevenson, the Motion Picture Association of America's senior vice president for state legislation. "Here you have exemptions being taken away from entities that develop and produce and write works of free expression, but not from use in political campaigns."

The MPAA, which includes the major Hollywood studios, opposes the Burton bill, saying that the measure could have prevented the production of such pictures as "Forrest Gump," "JFK" and even "Schindler's List" -- all of which employed speculative portrayals of dead personalities.

The measure passed the Senate on a bipartisan vote in April and now awaits action in the Assembly. One of its few opponents there, Assemblyman Dick Ackerman, a Fullerton Republican, says the bill could harm the state's entertainment industry, which by its nature constantly recycles the past.

"Should we give the same rights to dead people that we give to living people?" Mr. Ackerman wonders. "The dead usually have fewer rights." Indeed, such claims as libel, slander and invasion of privacy can only be lodged by the living, not a dead person's heirs, no matter how aggrieved.

And that may be fortunate for politicians, who seem to believe that voters prefer the spectral leaders of days past to the flesh-and-blood variety still on the hustings. In the 1998 elections, the California Democratic Party mailed a slick booklet to voters that pictured the Rev. Martin Luther King Jr., President Lyndon B. Johnson and Sen. Robert F. Kennedy under the banner, "A History of Leadership." On the next page: present-day Democratic politicians, including gubernatorial candidate Gray Davis and Sen. Barbara Boxer.

Republicans, too, employ dead icons; for example, a San Pedro-based campaign firm using the name Republican Voter Checklist sent slate mailers for GOP candidates featuring portraits of Abraham Lincoln and Dwight D. Eisenhower. The caption: "The Republican Party Has Always Stood for Progress and Individual Liberty."

An aide to Sen. Burton says the political exemption is required to comply with constitutional guarantees of free speech. There are, as well, exceptions in place for "any news, public-affairs or sports broadcast."

But not everyone in Sacramento agrees that campaign speech occupies a special plane. There's no "justification for a unique protection for political speech" while restricting other forms of noncommercial expression, says Terry Francke, general counsel for the California First Amendment Coalition, a Sacramento nonprofit group largely supported by newspaper publishers and others in the news media. Instead, he suspects Sen. Burton preserved the exemption to benefit politicians and their campaign staffs -- and to ensure that fellow legislators have no reason to oppose the bill.

Politicians and their handlers "don't write books, they don't write history or profess to do anything creative, but, by gosh, they have to get elected, and that means they may have to wrap themselves in the shrouds of someone noble who has gone up to meet his maker," says Mr. Francke. "So many of them invoke FDR or other departed spirits."

Campaign managers defend their use of the dead. Election mailers are "not commercial speech," says West Hollywood political consultant Fred Huebscher, who has put photos of President John F. Kennedy and Dr. King in statewide slate mailers for Democratic candidates. Unlike product advertisements, Mr. Huebscher maintains, political mailers, however simplistic, reflect heartfelt philosophical views. "There's something to be said for whether you truly believe in it or not."

Some political operatives, however, don't think there should be a distinction. Photos of Cesar Chavez, the late farm-workers leader, have been put into both billboards for a computer company and political mailers targeting Latino voters. The latter use is hardly "more noble," says campaign consultant Victor Griego, who used Chavez pictures in a Los Angeles school-board race four years ago and in his own Los Angeles City Council race last month.

Mr. Griego declines to comment on Sen. Burton's legislation, but says that when it comes to the living making use of the dead, "the question is how they use it and for what purpose," he says.

Sen. Burton's bill was instigated by Robyn Astaire, who was married to Fred Astaire from 1980 until his death seven years later at age 88. Mrs. Astaire, now 54 years old, has zealously guarded use of her husband's image -- and profited handsomely when she has consented.

In 1989, Mrs. Astaire sued after a producer of dance-instruction videotapes, which had licensed the Fred Astaire Dance Studios name, used 90 seconds of Mr. Astaire dancing in one of its tapes. Mrs. Astaire won in trial court, but after her verdict was reversed in 1997 by the U.S. Ninth Circuit Court of Appeals in San Francisco, she asked Sen. Burton to toughen state law on the subject.

Mrs. Astaire had fought to restrict use of her late husband's image before; in 1992 she blocked the Kennedy Center for the Performing Arts in Washington, D.C., from including clips of Mr. Astaire for its televised tribute to his legendary dance partner, Ginger Rogers -- even though the center had extended Mr. Astaire the same honor in 1978.

Then, in 1997, she collected an undisclosed sum by blessing a television commercial, first aired during the Super Bowl, in which her late husband danced with a vacuum cleaner.