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Is Arnold Schwarzenegger a Hollywood celebrity with Terminator-like control over his image. Or has he been transformed into an elected official who, like it or not, has to take his lumps when it comes to parody? Or to put it another way, is the depiction of the California governor’s chiseled face on a bobblehead doll an example of “transformative” art or nothing more than a crude appropriation of Schwarzenegger’s famous face for commercial purposes? Those are some of the questions raised by a lawsuit that lawyers for the governor filed recently against a small Ohio firm that sells bobblehead dolls of various political figures. Among the dolls, which sell for $19.95 each, is one that depicts a grinning Schwarzenegger brandishing an automatic weapon. Lawyers at Lavely & Singer, a Los Angeles firm that represents Oak Productions Inc., which oversees Schwarzenegger’s publicity rights, have described the doll as an “unauthorized commercial exploitation of Mr. Schwarzenegger’s name, photography and likeness.” In a letter sent in late April to Ohio Discount Merchandise Inc. and its subsidiary, Bosley Bobbing Head Doll Co., attorney Martin Singer said the commercial rights to the governor’s likeness were “worth millions of dollars.” According to the letter, Schwarzenegger doesn’t permit the commercial use of his likeness except to promote his movies. Todd Bosley, who co-owns the bobblehead company with his brother, says he received the letter shortly after getting a call from the “frazzled” proprietor of a small gift shop in the basement of the state capitol building in Sacramento. The gift shop no longer carries the “Arnold Bobbleheads,” although books and T-shirts bearing the governor’s face remain on sale. Bosley, meanwhile, is receiving pro bono legal representation from IP attorneys at San Francisco’s Townsend and Townsend and Crew. “As an intellectual property litigation attorney, I am clearly an advocate for tough intellectual property protection, but IP simply cannot be used to trump the First Amendment in this case,” says William Gallagher, a Townsend partner who is representing Bosley. “We think this is an important case � and we’re confident we will win in court, if necessary.” A portion of the proceeds from the Schwarzenegger doll, along with others, are donated to a nonprofit group that raises money for sarcoma cancer research. The group was started by friends of John Edgell, a Washington, D.C., lobbyist, who got the idea of using bobbleheads as a fund raiser. Edgell, who paid for the manufacturing of the dolls sold for charity, contacted Bosley with the idea of creating the Schwarzenegger bobblehead when it was clear that the movie star would be elected to office. “Arnold’s lawyers don’t know the law, or they appear not to know the law,” says Edgell. “I think they’re so used to defending him — rightly so — as a private citizen, that they think that pulling these threats will be effective.” But experts caution that the suit against Ohio Discount and its subsidiaries is more likely to turn on case law dealing with unlicensed commercial use than on issues related to the First Amendment. “If I borrow your face in a way that’s instantly recognizable to anyone who knows you and put it on a product, no matter if you are a public figure or completely anonymous, you have a right under the law to say �you can’t use my face to make money,’” says Terry Francke, a First Amendment attorney in Sacramento. Case law defining the use of a person’s likeness for commercial purposes is very muddy, says Anjani Mandavia, an attorney with Weissmann, Wolff, Bergman, Coleman, Silverman & Holmes in Beverly Hills. She represented DC Comics in a California Supreme Court case brought by rock-’n'-roll singers Johnny and Edgar Winter. In Winter v. DC Comics, 30 Cal. 4th 881, the justices concluded that a comic book depiction of the “Autumn Brothers” — half-human, half-worm creatures — had sufficiently transformed the singers’ images into an artistic expression protected by the First Amendment. That ruling came in the wake of a 2001 state high court opinion in Comedy III Productions v. Saderup, 25 Cal. 4th 387. In that case, the justices unanimously ruled against an artist who sold T-shirts with charcoal sketches of the Three Stooges. The justices said the artist had simply appropriated the likenesses of the famous comedians and had not transformed them enough to claim an original, artistic creation. The demand letter sent by Schwarzenegger’s lawyers cites a third case, Midler v. Ford Motor Co., 849 F. 2d 460. The 1988 Ninth Circuit case held that Ford Motor Co.’s use of a Bette Midler sound-alike in a commercial “appropriated what is not theirs � and committed a tort in California.” Mandavia speculates that Schwarzenegger’s attorneys may have cited Midler because it set a clearer test than the ones articulated by the justices in Saderup and applied in Winter. “The problem with the Supreme Court decision [involving the Three Stooges] is no one is completely comfortable with how it’s going to be applied in different situations,” says Mandavia. “It established a sort of test that was supposed to be applied generally to the right of publicity law, but it was devoted to a very specific situation. How it translates from that specific situation just hasn’t been determined.” Complicating the issue is the emergence of hybrid public figures such as Schwarzenegger and former Minnesota Gov. Jesse Ventura, who originally gained celebrity status as a professional wrestler. “I personally would think you ought to be able to do a lot of things with politicians that you can’t do with traditional celebrities, but here you have someone who is both,” says Mandavia. Even if politicians can control the commercial use of their images, many choose not to, adds Francke. Most politicians who hit the big time “can’t be bothered by laws” developed for celebrities.

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