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Fred Goldman's Attempt to Seize O.J.'s Right of Publicity:

The Complaint is here, and it's very interesting. The theory is simple: O.J. owes Goldman, according to the Complaint, $38 million (the original $19 million wrongful death award plus interest). O.J. has a valuable asset -- his right of publicity, which is to say the right to distribute merchandising containing his name, likeness, signature, voice, and the like (e.g., autographs, T-shirts, coffee mugs, and the like), the right to license these items for merchandising, and the right to license these items for advertising. Goldman, the theory goes, may therefore seize the asset to help satisfy the judgment, just like he could seize real estate, tangible property, patents, copyrights, and the like.

If Goldman prevails, then Goldman would presumably be able to license people to make O.J. T-shirts and the like, and to sell them. He could license the use of O.J.'s name and likeness in commercials (the licensee couldn't force O.J. to act in the commercials, but it could use preexisting pictures, hire lookalikes, and so on). He could license O.J.'s names and likeness for derogatory uses (O.J. toilet paper?), though some such derogatory uses might already be permissible to everyone (not just the holder of the right to publicity or his licensees) under the not-yet-fully-established parody / transformative use exception to the right.

He could also stop O.J. from doing all these things, since O.J. would no longer own his own right of publicity (just as an author who loses the copyright in his work is no longer allowed to make copies or derivative works of the work). And of course Goldman could also just refuse to license or sell anything -- even if the right is seized to help satisfy O.J.'s monetary obligation, once Goldman owns the right he has no obligation to make money from it -- but keep others, including O.J., from doing the same.

It's an interesting theory, and it sounds credible to me, especially if the right of publicity is treated as a property right akin to copyright or patent. Yet it does seem a little weird, especially given that the likeliest use of the seizure will be simply to stop O.J. or anyone else from making any money from his right of publicity, without making any extra money for Goldman, who I doubt really wants to make a living off O.J. memorabilia (unless he does want to go into the O.J. toilet paper business). Do any of our readers have expertise on the subject that they'd like to share?

Dick King:
There is one problem that I [a non-lawyer] can see with siezing these rights and sitting on them.

When you sieze property as part of a judgment, isn't the judgment reduced by the value of the property even if you don't sell it? I assume that if Goldman does this then OJ will attempt to claim that the judgment is satisfied, and there will be a lawsuit over this.

-dk
9.22.2006 3:16pm
Rich B. (mail):
The problem, of course, is the underpinnings of the "Right of Publicity."

It has two potential underpinnings, both of which are mentioned in the first two paragraphs of Section A of the "Argument" in the brief. (p.4) "California has large recognized the right of publicity as derivative of the right of privacy." Call this the Brandeis/Warren theory. Followed immediately by "In California . . . Courts have that the right of publicity is a property right."

Search the document, and you will see that the word "privacy" is only used once (in the quoted line), and the Brandeis/Warren theory is otherwise omitted. (One might imagine that including it at all was an unfortunate oversight.)

There are, of course, good reasons for considering it as a "privacy right" or a "property right" in different circumstances, and 99% of the time it doesn't matter. This case is the 1%, because property rights can generally be alienated, while privacy rights cannot.

Before the thread turns into a "Property Right!"/"Privacy Right!" shouting match reminiscent of a light beer commercial, I would consider the ramification of the Property Right view dominating.

It strikes me that the results would tend more toward the punitive than the compensatory, as Prof. Volokh indicates.
9.22.2006 3:27pm
Houston Lawyer:
I understand the whole "Artist Formerly Known as Prince" debacle arose from such artist signing a rather outrageously broad contract concerning his publicity and marketing rights to the record company. If you could contractually give up this right, no reason for a judgement creditor not to be able to sieze it.
9.22.2006 3:34pm
Dick King:
Well, that kind of fits since the award was more punitive than compensatory. I have long thought that punies should require a criminal standard [beyond reasonable doubt, not a preponderance of the evidence], but it doesn't look like I'm ever going to see that.

-dk
9.22.2006 3:34pm
Master Shake:

Yet it does seem a little weird, especially given that the likeliest use of the seizure will be simply to stop O.J. or anyone else from making any money from his right of publicity, without making any extra money for Goldman, who I doubt really wants to make a living off O.J. memorabilia (unless he does want to go into the O.J. toilet paper business).
But couldn't Goldman sell the right to somebody who wanted to be in the O.J. business?
9.22.2006 3:44pm
Squiggler (mail) (www):
First of all Fred Goldman is a disgusting gold digger. Second, this smacks of slavery to me. Sounds like buying a person pure and simple. Fred Goldman makes me want to puke.
9.22.2006 3:51pm
DaveN (mail):
I have no expertise in this area of law, though it seems at least at first glance that Goldman's argument has merit. I remember a case from law school (15 or 16 years ago) wherein the estate of Martin Luther King, Jr., successfully sued an entrepeneur who wanted to exploit Dr. King's likeness for profit. It would appear that if the heirs of a noteworthy individual could sue to prevent exploitation, Goldman has just as valid of a claim. The Martin Luther King, Jr. Center for Social Change, Inc. v. American Heritage Products, Inc. 296 S.E.2d 697 (Ga. 1982). In this case, the Georgia Supreme Court held that the Right to Publicity was a devisable and inheritable right

However, the Right to Publicity appears to be related to the Right of Privacy. Consequently, I am not sure if publicity, as a corollary to privacy, which is a fundamental right, can be stripped involuntarily from its holder.

I am also wondering what might happen if Goldman is successful. For example, could a Right of Publicity be an asset of a bankruptcy estate if the debtor is famous? If so, how could it be measured or enforced either pre or post-discharge? Likewise, what if the famous person is a minor? Can the parent, acting as guardian, encumber the Right of Publicity past the age of majority? What happens if the minor emancipates?

This is not my speciality by any means--just an area that has always intrigued me.

On an unrelated note, this motion also is a good reminder to proofread pleadings before filing. I am sure that Fred Goldman would be jusitifiably outraged at being referred to as "Frederic Simpson" (page 4, line 2), even by his own attorneys.
9.22.2006 3:53pm
Martin Grant (mail):
So If I fail to pay my credit card for a couple months, the credit card company should file claim for my right of publicity. Then they can use my image as an extra in ads, without having to a pay a struggling model. :-)
9.22.2006 3:57pm
tjvm:
When you sieze property as part of a judgment, isn't the judgment reduced by the value of the property even if you don't sell it?

Typically, yes. And in this case, there could theoretically be court proceedings over the market value of OJ's publicity rights. But the judgment would only be satisfied if those rights were worth $38 million, and I doubt that they're worth anything close to that -- I can't remember the last time I saw OJ's likeness being used commercially.
9.22.2006 3:58pm
Philistine (mail):
Dick King:

I have long thought that punies should require a criminal standard [beyond reasonable doubt, not a preponderance of the evidence], but it doesn't look like I'm ever going to see that.


Colorado (at least) requires beyond a reasonable doubt. CRS 13-25-127

Many more require clear and convincing.
9.22.2006 3:58pm
Martin Grant (mail):
And if I ever try to run for public office, they'll have more free reign in the ads they can against me in my name.
9.22.2006 3:58pm
SANE (mail):
As part of the "satisfaction" issue, you would have to provide some valuation. Depending on local rules for a judgment creditor enforcing his judgment lien rights, while you might put a present value on it, you would certainly have OJ claiming that the right in perpetuity would exceed the judgment amount. If the court gave the right for some fixed period of time, you might have then opened a pandora's box of counter claims by OJ claiming wasting etc. I could imagine Goldman doing a film or other promotional projects that would "damage" the value of the asset -- showing OJ in a bad light. If OJ had some residual rights in the assets (either after a fixed time or after Goldman had paid off the judgment), OJ would claim he has been damaged.

Then the question would be how do you separate this "property right" -- which is not a thing in any real sense but a legal construct -- from OJ's actual personage. What if OJ takes a job that puts him in the public eye? Is he "trading" on his persona as part of the property right seized by Goldman or providing his body/voice etc for services rendered?
9.22.2006 3:59pm
Joshua (www):
And if I ever try to run for public office, they'll have more free reign in the ads they can against me in my name.

Well, at least that's one way to get around McCain-Feingold...
9.22.2006 4:06pm
JohnAnnArbor:

First of all Fred Goldman is a disgusting gold digger.

Yeah, I mean, whoever tries to get back at someone who killed his son? I mean, seriously! It's just murder. Shouldn't he get over it?

/sarcasm
9.22.2006 4:07pm
Ted Frank (www):
If Goldman succeeds, and Gawker Media libels Simpson by maliciously falsely calling him a pedophile, does Goldman have a cause of action against Gawker Media? If Simpson falsely announces himself to be a pedophile, does Goldman have a cause of action against Simpson? What if Simpson actually molests a child, damaging Goldman's property right?

I do disagree with EV's last paragraph: if Simpson is evading the court order and earning money under the table using his right of publicity, turning over the right of publicity to Goldman creates the possibility of a deal whereby Simpson pays Goldman upfront money for the right to sign autographs in Chicago for an hour.

And if the right is transferable, Goldman could monetize it by selling it to someone who is willing to sell tasteless OJ-Simpson branded products.

Of course, that assumes that the property right in a living celebrity is enforceable when it's not held by the celebrity. I'm simply not creative enough to see how that is at all feasible. Goldman surely can't prevent Simpson from giving interviews for free, even though it dilutes the value of the "brand."

Furthermore, how does one assess the value of the property right against what is owed? What happens if Simpson claims his name value is worth $50 million, and Goldman owes him several million in change?
9.22.2006 4:07pm
Ted Frank (www):
I took too long to type my comment, and SANE hit some of the same points.
9.22.2006 4:08pm
elChato (mail):
Why can't Goldman simply get an injunction granting him all revenues OJ's right of publicity generates? If he has evidence that OJ is pocketing the money and not paying him, contempt of court is available.

By the way- speaking of MLK, how is his family able to keep his speeches of great historical value considered "out of the public domain?" Seems like a limitation on the usefulness of the copyright laws.
9.22.2006 4:21pm
abb3w:
If the libel laws strech far enough, he might at least be willing to make some money and gain some moral satisfaction by selling T-shirts with pictures of OJ and a slogan like "Stop Looking for the Real Killer." Such satisfaction might also have economic value. Still, the whole thing sounds like a science fiction story. (In particular, parts of Varley's novel "The Golden Globe".)

Disclaimer: IAmNotALawyer, and all I learned of Economics was from ECON202 and Wikipedia.
9.22.2006 4:22pm
Armen (mail) (www):
This is like when Bart sells his soul to Milhouse.
9.22.2006 4:57pm
arbitraryaardvark (mail) (www):
http://www.markroesler.com/ipresources/rightofpublicity.htm is a useful into to the topic. I was once local counsel to defendants in (frivolous plaintiff) v Humphreybogartclub.com, a reverse cycbersquatting case based on Indiana's right of publicity. Our client had no contacts with Indiana, so we won on jurisdictional grounds, but it showed me there is an industry of firms that manage these rights.
The simpson case, which I think is quite reasonable in itself, is a step towards this set of the bundle of rights becoming commodified. Robin Hanson advocates futures markets, and the general trend since the 70s has been to recognize that markets are efficient. David Bowie raised 50 million by packaging and selling his expected future royalties from his old albums.
There's a new niche here, depending on how the case goes, for people to set up markets in this stuff. What am i bid for 0.01% of the backstreet boy's rights of publicity?
Maybe the evolution of these new forms of assets will help in some small way in the reshaping of music distribution that is going on now.
9.22.2006 5:04pm
Third Party Beneficiary (mail):
When I first heard of this case, one of the things that immediately leapt to mind was that by common law a person ordinarily cannot be prevented from using their own name in business by a trademark holder of the same name. (The exception is where a person has contracted to not use their own name.) To my mind, this line of authority would suggest that someone could not be involuntarily divested of their likeness/right of publicity.
9.22.2006 5:13pm
ksd:
Great. California law prohibits pensions from being used to satisfy judgments, so OJ's creditors can't touch his NFL pension. OJ lives in Florida now, which has an unlimited homestead exemption, so they can't get his home. There are no other assets anyone knows about, so he's been able to just ignore a $19 million wrongful death judgment and go on living the high life. That's just wrong. In the meantime, someone is collecting significant appearance fees for him to show up at parties, nightclubs, etc., and he's even been involved in some TV projects. If I was a family member of one of the people he brutally murdered, I'd be incensed.
9.22.2006 5:32pm
DCP:
I don't see this nebulous publicity/likeness right as something akin to property rights. It's seems far to related to the privacy rights of the person it is attached to to be divested as an asset.

There's also the matter of policy as to waste. As mentioned Goldman would likely exercise this as an injunction to prohibit OJ from working or promoting himself in any way. I find it hard to believe a court would endorse this.

It seems the better approach is to allow him to go after income directly derived from this right. OJ was in several TV shows and the popular naked gun franchise. I just noticed that the long running HBO show "1st and Ten" is now out on DVD. I'm assuming OJ is entitled to some royalties or residuals from his acting career. Goldman should be able to go after those.
9.22.2006 5:53pm
PersonFromPorlock:
Thirteenth Amendment: Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

So, why not just declare Simpson to be Goldman's slave? That seems to be where Goldman's heading.
9.22.2006 6:31pm
Xrayspec:
Never gonna happen. The effect of the decision would be to make rights of publicity available to any plaintiff to satisfy their judgment. Yes, in most cases RoP isn't worth much economically. But then all the more reason for the plaintiff to take it ("I'll knock $5000 off my settlement offer for your RoP -- that's a good deal!") and then use it maliciously.

The privacy / property duality isn't contradictory. It's true of labor: you can take money to work, you can take money NOT to work (noncompete K), but the 13th amendment prevents anyone from forcing you to work. Labor behaves like a property right, but it's protected from certain encroachments as a liberty right.

So it's no big deal to think that RoP could act like a property right, up to a certain threshold, at which point it acts like a privacy right.
9.22.2006 6:42pm
Xrayspec:
Porlock: dude. He. Was. Acquitted.
9.22.2006 6:56pm
Dylanfa (mail) (www):
Was he? You'd think the media might have covered the story.
9.22.2006 8:18pm
Dave Sheldon (mail):
I did a bunch of research over the summer relating to the Right of Publicity. Whether it's viewed as an alienable property right or an inalienable privacy right depends to a large part on the origin of the right in the particular state. Most states, including CA, have a statutory right of publicity that is transferrable and descendible. Some states, like New York, have a right of publicity that is grounded in privacy rights, and is therefore not transferrable or descendible.

One interesting wrinkle about this issue is that the choice of law that determines a person's postmortem privacy rights is determined by the state where they die. If Fred Goldman was able to obtain an assignment of O.J.'s privacy rights, what would happen if O.J. wanted to leave the state? If O.J. moved to Indiana, the chose in action possessed by Fred Goldman and that Fred Goldman could freely devise would increase in value due to Indiana's greater statutory protections. If O.J. moved to NY, the chose in action possessed by Fred Goldman could be extinguished.
9.22.2006 8:22pm
Xrayspec:
Re choice of law for right of publicity: I believe there was litigation this year over Marilyn Monroe's estate pertaining to that exact issue -- where she officially died.
9.22.2006 8:40pm
Fub:
Dave Sheldon wrote:
Most states, including CA, have a statutory right of publicity that is transferrable and descendible. Some states, like New York, have a right of publicity that is grounded in privacy rights, and is therefore not transferrable or descendible.
CA has both an transferrable right to publicity (see Civil Code 3344 &3344.1 cited in the P&A) and a constitutional right to privacy. CA's constitutional right to privacy is fairly recent, passed by initiative circa 1972.

Yet the P&A asserts (in III, Argument), quoting a 2004 scholarly article,
"California has long recognized the right of publicity as derivative of the right of privacy."
I don't know the history of the current right to publicity in CA, but I find it a bit difficult to understand that assertion without knowing whatever historical synopsis the cited article provides.
9.22.2006 9:32pm
Former Republican (mail):
My guess is that the value of the right to publicity differ depending on whether OJ or Fred Goldman owns it. I might buy something with OJ's likeness on it if I knew the money was going to the Goldman family, but I'm damn sure not going to buy it if Simpson gets the money.
9.22.2006 11:31pm
liberalvolokhreader (mail):
Yes, I think there could be a real market when it is understood where the proceeds were going. You could market a t-shirt with OJ's likeness that says
"I bought this t-shirt to make OJ pay for what he did"
9.23.2006 2:49am
Crunchy Frog:
foer an interesting look at someone who does not own his own RoP, look no further than Dale Earnhart Jr. His RoP is owned by Dale Earnhart, Inc., which is owned lock, stock and barrel, by his stepmother, Teresa.
9.23.2006 3:20am
O.J. Did It, But Slavery Is Unconstitutional (mail):

First of all Fred Goldman is a disgusting gold digger. Second, this smacks of slavery to me. Sounds like buying a person pure and simple. Fred Goldman makes me want to puke.



Thank you. This is exactly what I would have posted were I not drinking a beer right now. I would only further note two things: (1) that O.J. Simpson was not convicted of a crime, so the Thirteenth Amendment exception does not apply; and (2) during the O.J. murder trial, Fred Goldman managed to arrive on the courthouse steps for his daily press conference with a perfectly groomed handlebar mustache. Primping your mustache in front of the mirror early in the morning of each day doesn't strike me as particularly grief-stricken.
9.23.2006 4:32am
John Noble (mail):
Goldman can (and I assume has) attached Simpson's receivables, including those that are derived from the exploitation of the right of publicity. However, the value of the right is in the public regard for the persona that "owns" it, and presumptively controls it. If Goldman is lending Simpson's persona to an Avis advertising campaign, then its value is that of Goldman's endorsement, not Simpson's. The logic behind the misappropriation claim is that it deprives the celebrity of the value of his endorsement. If the right is seized, conveyed, and controlled by Goldman, it is no longer Simpson's endorsement. In short, the res does not exist apart from its presumed control by the celebrity to which it is attached.

John Noble
9.23.2006 4:49am
PersonFromPorlock:
Xrayspec:

Porlock: dude. He. Was. Acquitted.

Right, and I even agreed with the jury's verdict. But he was duly 'convicted' of having killed his wife and Ronald Goldman (crimes) by a jury, albeit a civil one, so I think a case can be made for a Thirteenth Amendment exception. My point, in case you missed it, was largely sardonic.
9.23.2006 7:56am
Ming the Merciless Siamese Cat (mail):
If the Court finds in favor of Goldman celebrity bankruptcies, already entertaining, would become epic battles. Find a bankrupt celebrity and use your imagination: Think what vengeful creditors could do to, for example, Mike Tyson or -- thinking a few years into the future -- Britney Spears. Think about all the people who would bid at the bankruptcy auction for the right to Michael Jackson's name, likeness and signature and imagine what someone like, say, Howard Stern, could do with it."
9.23.2006 12:21pm
lee (mail):
O.J. Toilet Paper? Ridiuclous. Now the O.J. Knife Company...
9.23.2006 12:43pm
Mary Katherine Day-Petrano (mail):
"First of all Fred Goldman is a disgusting gold digger. Second, this smacks of slavery to me. Sounds like buying a person pure and simple. Fred Goldman makes me want to puke."

Though this comment was not very artfully stated, I think it does somehow raise an interesting point. While I totally agree with EV, I wonder what happens when this rule becomes extended, say, to sale of "goodwill" attached to someone's name. E.g., person like Tiger Woods starts a very high level elite professional golfing coaching school, completely predicated on his name plus his personal service in rendering the high level coaching instruction=an intangible asset of "goodwill."

It would seem to me, in the latter hypo, the "goodwill" might not be saleable, since there would be nothing left of the "goodwill" absent Tiger performing personal services as a componenet of the value of the intangible "goodwill" asset. Since there is no specific performance of personal service contracts and the 13th Amendment bars involuntarily forcing someone's labor, it would seem the latter hypo would fall on teh other side of the line from the sale of O.J's right of publicity.

In O.J.' case, he already earned his publicity name, so to speak, and therefore to allow Goldman to execute the judgment on it would not require personal service or involuntary labor from O.J.

I do wonder, however, if Goldman would have the right not to maximize the economic value by sitting on this intangible asset, once he executes upon it.
9.23.2006 1:57pm
Mary Katherine Day-Petrano (mail):
"But couldn't Goldman sell the right to somebody who wanted to be in the O.J. business?"

This is also an interesing point. Exactly. And additionally, Goldmand could assign, lease, license, or unbundle portions and do the same.
9.23.2006 1:59pm
Mary Katherine Day-Petrano (mail):
"As part of the "satisfaction" issue, you would have to provide some valuation. Depending on local rules for a judgment creditor enforcing his judgment lien rights, while you might put a present value on it, you would certainly have OJ claiming that the right in perpetuity would exceed the judgment amount."

No, I think this gets it all wrong. Once the judgement is executed on the asset, the ownership is then in Goldman. Subsequently, whether the value goes down or up (appreaciates) inures to Goldman, O.J.'s ownership rights having been severed by the execution of the judgment that severs O.J.'s ownership of the asset. Any consideration of the value "in perpetuity" would have to be made at the time of execution of the judgment, not after *seeing how it goes* post-execution.
9.23.2006 2:05pm
Mary Katherine Day-Petrano (mail):
The reason the "in pertuity" idea that O.J. should capture apprecation of the vlaue of the instanglible asset after Goldman has executed on it is wrong, is readily apparent in the next comment, that a "pandora's box of counter claims by OJ claiming wasting etc." would be opened. "I could imagine Goldman doing a film or other promotional projects that would 'damage' the value of the asset -- showing O.J. in a bad light.'" once O.J.'s ownership rights are cutoff by the execution of judgment on the intangible asset, and ownershp then vests in Goldman, O.J. would lack standing to assert "damage" or "waste" claims, having suffered no cognizeable injury-in-fact.

It is kind of like viewing the sale of real property; once the ownership has changed, the prior owner cannot claim any appreciation rights as against the purchaser (new owner). This is the bargain they made in executing the sale -- who has the risk of downturn and the advantage of appreciation. It could go either way for the new owner. What you are positing is that somehow, Goldman should take on all the risk of the intangible asset becoming less valuable or even a liability, but not benefit form all the upturn (appreciation). The faulty analysis is quite evident in the failure of your line of thinking to assign to O.J. (if you would give him a share of the appreciation, if there is some), also the obligation to satify paying a share of any downtrn or liability. It just doesn't work the way you suggest in your comment.

"Then the question would be how do you separate this "property right" -- which is not a thing in any real sense but a legal construct -- from OJ's actual personage. What if OJ takes a job that puts him in the public eye? Is he "trading" on his persona as part of the property right seized by Goldman or providing his body/voice etc for services rendered?"

This is sort of a more interesting question. I would not characterize it as "personage," but perhaps as I discussed above, when O.J. is performing personal services deriving from who he is. If O.J. take a job, it would depend on the type of job, I would think. If O.J. is selling elite Heiman trophy-esque instructional services, maybe he is more like the Tiger Woods hypo I suggested above. But if O.J. is dressing up in an "O.J." suit as the Heisman Trophy itself with his name on it, it would seem to me (once Goldman executes on this intangible asset), that O.J. would violate Goldman's ownership rights, and hence Goldman could bring a cease and desist, disgorgement of profits, and/or injunctive relief action -- and get an order enforceable by contempt. Endorsements are a much more interesting issue, but I think there would be plenty of value already in the intangible publicity asset for Goldman, without having to even address or rely on the endorsement issue.

The question is interesting from the perspective of exactly how broad are the ownership rights in the intangible asset Golman will acquire by executing the judgment on it: at some level, the asset must include copyrights and trademarks. It would seem Goldman would have the right not only to existing copyrights and trademarks included in the asset he executes on, but also the right to apply for new copyrights or trademarks. (e.g., an "O.J. doll or an "O.J. T-shirt).

Now what happens if (after execution of the judgment on the pre-existing and then-existing publicity) O.J. goes out an becomes embroiled in an entirely new cause for publicity -- say he is caught in a marijuana bust, and for some reason he thinks he would like to sell his picture in the middle of a marijuana patch for the purpose of discouraging drug use. It would seem to me, this cause for publicity is a new one, and would not be included in the asset owned, post-execution of judgment by Goldman. Anyone eslse have any light to shed on this?
But, in any event, it is a harder line to draw.

"I do disagree with EV's last paragraph: if Simpson is evading the court order and earning money under the table using his right of publicity, turning over the right of publicity to Goldman creates the possibility of a deal whereby Simpson pays Goldman upfront money for the right to sign autographs in Chicago for an hour."

I do not think, under my above discussion, that Goldman could get any order to compel O.J. to sign autographs post-execution of judgment, since there is no specific performance of personal services and there would be a 13th Amendment involuntary labor bar; but if O.J. already had in his possession signed autographs on photos or pricutes, then ownership of these would be executed upon and ownership would transfer to Goldman, then Goldman could reproduce, lease, license, or whatever copies of these already autographed photos or pictures.

"And if the right is transferable, Goldman could monetize it by selling it to someone who is willing to sell tasteless OJ-Simpson branded products." And, while this may seem in poor taste to some people, after Goldman executes the judgment on the intangible asset, he can do whatever he wants to maximize value -- including satirize or characterize dolls, T-shorts. or other object that might poke fun at O.J., and who can say these would not sell? Just look at the Pet Rock. Such value producing $$ would inure to Goldman in satisfaction of the judgment.

"Of course, that assumes that the property right in a living celebrity is enforceable when it's not held by the celebrity. I'm simply not creative enough to see how that is at all feasible. Goldman surely can't prevent Simpson from giving interviews for free, even though it dilutes the value of the 'brand.'"

No? I surely can think of more than one federal judge who could and would isue an injunction prohibiting O.J. from giving personal interviews that would interfere with the value Goldman can realize from the intangible publicity asset. Injunctive relief prohibiting interference with the economic rights owned by Goldman post-execution of judgment is not the same thing as mandatory injunctive relief directing O.J. to perform personal services and/or involuntary labor to enhance the value of the post-execution goldman-owned intangible asset.

"Furthermore, how does one assess the value of the property right against what is owed? What happens if Simpson claims his name value is worth $50 million, and Goldman owes him several million in change?"

How is this so difficult? I am sure Sotheby's, Christies, or Lloyd of London could perform such a task if there were a reason to value an intangible asset. This is what appraisal and actuarial science is about, and it is really similar to a much more specialized form of how a personal injury award might be calulated when a Carnegie Hall musician loses the lifetime ability to play as the result of some injury.

"Why can't Goldman simply get an injunction granting him all revenues OJ's right of publicity generates? If he has evidence that OJ is pocketing the money and not paying him, contempt of court is available." I am wondering if a lot of people here did not take copyright, patent, trademark, and IP law. Injunctive relief does not give compelte relief, since in this instance, O.J. would still be holding a lot of the loot; hence injunctive relief must be accompanied by disgorgement of the illgotten gains to O.J.

"I did a bunch of research over the summer relating to the Right of Publicity. Whether it's viewed as an alienable property right or an inalienable privacy right depends to a large part on the origin of the right in the particular state. Most states, including CA, have a statutory right of publicity that is transferrable and descendible. Some states, like New York, have a right of publicity that is grounded in privacy rights, and is therefore not transferrable or descendible.

One interesting wrinkle about this issue is that the choice of law that determines a person's postmortem privacy rights is determined by the state where they die. If Fred Goldman was able to obtain an assignment of O.J.'s privacy rights, what would happen if O.J. wanted to leave the state? If O.J. moved to Indiana, the chose in action possessed by Fred Goldman and that Fred Goldman could freely devise would increase in value due to Indiana's greater statutory protections. If O.J. moved to NY, the chose in action possessed by Fred Goldman could be extinguished."

I would think (bringing up the subject of bankruptcies), that Goldman could lock in the publicity being created under California law and prevent the value of his post-execution of judgment intangible asset from changing on a State-by-State basis occording to O.J.'s residency whims, by filing for Chapter 11 reorganization relief the mement the judgment is executed, and getting a federal bankruptcy judgment recognizing the asset under California law, which bankruptcy judgment would then be res judicata for all time. Sort of an Anna Nicole Smith-esque twist on maximizing the intangible publicity asset for Goldman. Goldman would just have to ensure debtor-in-possession remained in control, to avoid loss of control over an unanticipated conversion to Chapter 7 and liquidation of the asset.
9.23.2006 2:50pm
Fub:
John Noble wrote:
Goldman can (and I assume has) attached Simpson's receivables, including those that are derived from the exploitation of the right of publicity. ... [good argument elided] ...In short, the res does not exist apart from its presumed control by the celebrity to which it is attached.
I think the motion does recognize that point, but in a roundabout way. I think the motion itself reveals that Goldman's intended exercise of publicity rights is essentially negative, ie: to enjoin exercise of the right of publicity without payment to Goldman, and not to allow Goldman to demand some exercise of the right or to control particulars of any exercise.

From TFA at PDF page 11:
At the same time, Simpson is intentionally evading his obligation to pay the judgment in this matter. According to a promoter of the 2005 NecroComicon convention, "Simpson attended the convention as a favor to a friend who was paid in advance to arrange for the weekend appearance." See Exhibit "B", p. 1, O.J. Simpson Makes Rare Public Appearance in L.A. The promoter, Tom Riccio, "told Reuters that Simpson, who lives in Florida, was 'not getting a penny' for his visit but was using the event as a dry run for possible future public appearances he might make in exchange for donations [to charity]." Id. at pp. 1-2. Simpson's exploitation of his name and likeness in exchange for fees paid to a friend, or donations to charity, is an evasion, if not a violation, of the turn-over order previously entered by this Court.
Negative exercise of the right avoids issues of involuntary servitude and issues of personal privacy. It just says "you can exercise your right to publicity any way and any time you want, but you've got to pay me when you do it." It's more analagous to wage garnishment than to controlling when, where, or how the debtor works.

Whether the court could or would sever and convey only that negative component of the right is beyond my knowledge to speculate plausibly. But I think that is what Goldman is actually seeking. Any more complete transfer of the right would open the major cans of worms already discussed here.
9.23.2006 4:05pm
Ak Mike (mail):
The motion appears to be motivated by punitive rather than compensatory purposes. I don't know California law, but in most places the normal method for enforcing judgments is to attach property and then sell it at an execution sale. Intangible property can be sold that way as well, although a court order so providing may be necessary.

The California statute cited by Goldman seems to be directed to ascertainable income streams, not intangible property in general. So if Goldman really wanted money out of this, what he should have done was ask for an order permitting him to execute on the right to publicity, and then allowing him to sell it at an execution sale. The price obtained at the sale (an auction at which anybody could bid) would then be a credit against the judgment balance. One can easily imagine that there are third parties out there that might be willing to bid at such an auction because they think money could be made from those rights.

But instead, Goldman is asking the court to transfer O.J.'s right of publicity directly to himself, so he will be in control of it. This is a far murkier and more unusual maneuver, because it raises the question mentioned above about how to value the right for purposes of crediting the judgment balance.

The obvious explanation is that Goldman doesn't really want to get money from this, but instead wants to use ownership of the right to publicity to humiliate O.J. or to starve him.
9.24.2006 12:22am
Grumpy Old Man (mail) (www):
Mike has it right. If the right is subject to execution, the only way to determine in what amount it partially satisfies the judgment would be to sell the right at auction. Goldman might be able to make a credit bid at the auction, but if he really is interested in the cash, he'd hope for some other bidder.

I doubt it's worth much.
9.24.2006 11:47am
Public_Defender (mail):
I do wonder, however, if Goldman would have the right not to maximize the economic value by sitting on this intangible asset, once he executes upon it.

I would assume that Simpson could extrapolate the value of the name as a credit against the judgment. Then Goldman could use the name or not as he wished.

Expect the judges to bend the law to help Goldman. In cases of Family of Murder Victim v. Murderer, most judges will do what they can to help the family (this applies even where the guilty murderer was acquitted due to sloppy and dishonest police and prosecutors).

As to the potshots against Goldman, give me a break. I have represented numerous people convicted of murder (and worse). One thing I have learned is to treat the victim's family with respect. Sometimes there are questions about whether the defendant really did it, but, by definition, the victim's family has always lost a family member.

The media was all over the O.J. case. If making himself look good each morning helped Goldman get through it, more power to him. If he can make O.J.'s life more difficult, more power to him.
9.24.2006 12:05pm
cmn (mail) (www):
In response to John Noble's point:

I agree with you that the logic behind the misappropriation claim perhaps SHOULD be limited to the value of the star's endorsement, but you will find plenty of cases and commentary (see eg the McCarthy treatise) saying that the right of publicity does not protect against only false imputations of endorsement (in which case section 43(a) of the Lanham Act would suffice), but against any use of the celebrity's persona for commercial purposes.
9.25.2006 11:09pm
ReaderY:
Aren't we getting close to a 13th Amendment issue here? Could a person's political opponents prevent the person from speaking out on issues? A power to seize another person's right to publicize themselves seems a power awfully prone to abuse -- and awfully close to seizing the other person's general power to work. Surely even a voluntary grant of such rights ought to be limited in scope, as is the case with noncompetition agreements.
9.26.2006 1:53am