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Is Arnold Schwarzenegger a Hollywood celebrity with ultimate control over his image, or an elected official who has to take his lumps when it comes to parody? Is putting the California governor’s chiseled face on a bobblehead doll an example of “transformative” art or just a crude appropriation of the Schwarzenegger image for commercial purposes? Those are some of the questions raised by a suit that lawyers for the governor filed last week against a small Ohio firm that sells bobblehead dolls of political figures. The dolls, which sell for $19.95 each, depict a smiling Schwarzenegger holding an automatic weapon. Los Angeles’ Lavely & Singer, which represents Oak Productions Inc., the owner of Schwarzenegger’s publicity rights, described the doll as an “unauthorized commercial exploitation of Mr. Schwarzenegger’s name, photography and likeness.” In an April 29 letter sent to Ohio Discount Merchandise Inc. and its subsidiary, Bosley Bobbing Head Doll Co., 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. Company co-owner Todd Bosley said 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. The gift shop no longer carries the Arnold Bobbleheads, although books and T-shirts bearing the governor’s face are for sale. Schwarzenegger bobbleheads are still for sale on a company’s Web site, www.bobbleheadelection.com. “We’re going to keep selling them. We’re going to keep moving on because that’s what we think is right to do,” said Bosley, who is currently looking for legal counsel while fielding media inquiries from around the world. Other bobblehead dolls for sale include House Speaker Tom Delay, who carries a hammer, Sen. John Kerry, who flaunts windswept gray locks, and Vermont Gov. Howard Dean, who carries his jacket thrown jauntily over one shoulder. A portion of the proceeds from the Schwarzenegger doll benefit the Kristen Ann Carr Fund for Sarcoma. The nonprofit was started by friends of John Edgell, a Capitol Hill 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 the Bosleys 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,” added 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,’” said First Amendment attorney Terry Francke. Case law defining the use of a person’s likeness for commercial purposes is very muddy, said Anjani Mandavia. She represented DC Comics in a state Supreme Court case last year filed by two albino rockers, Johnny and Edgar Winter. In Winter v. DC Comics, 30 Cal. 4th 881, the justices said the comic book depiction of the “Autumn Brothers” — half-human, half-worm creatures — had sufficiently transformed the celebrities’ image into an artistic expression protected by the First Amendment. The ruling built on a 2001 Supreme Court case, 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 their likenesses, and hadn’t “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 9th Circuit case held that Ford’s use of a Bette Midler sound-alike in a commercial “appropriated what is not theirs … and committed a tort in California.” Mandavia theorized that Schwarzenegger attorneys may have opted to cite Midler because it set a clearer precedent than the justices articulated in Saderup and applied in Winter. “The problem with the Supreme Court decision of 2001 is no one is completely comfortable with how it’s going to be applied in different situations,” said 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 like Schwarzenegger and former Minnesota Gov. Jesse “The Body” Ventura. “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,” Mandavia said. Even if politicians can control the commercial use of their images, many may choose not to, said Francke. “I think it comes down to a matter of class, frankly,” he said. Most politicians who hit the big time “can’t be bothered by laws” developed for celebrities. In the meantime, Bosley says Schwarzenegger bobblehead sales are bobbing right along. Sales didn’t used to be hot, adds Bosley. “They are now.”

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