Toy 'amended'

All the late-night mocking by Leno and Letterman has apparently pushed the Governator past his limit. In an effort to prove to the world that he has a firm head on his shoulders, Arnold Schwarzenegger sued a toy manufacturer for marketing bobbing-head dolls without his permission.

The bobble-head dolls portrayed the California governor in a statesman-like business suit and military bandoleer, brandishing an assault rifle—a juxtaposition of his role as politician and action hero.

Schwarzenegger's production company sued, alleging that doll manufacturer Ohio Discount Merchandise Inc. (ODM) misappropriated his name, photograph, and likeness for commercial purposes.

ODM asserted that the bobble-head dolls are constitutionally privileged free speech and do not violate anyone's rights of publicity.

Schwarzenegger's suit was premised on the common law right of publicity—that is, a person's right to control the commercial use of his own identity. Although the reach of the publicity right appears broad, it is limited to commercial contexts. Where the governor/action hero probably does not have a case is where his name, likeness or photograph is being used in the news or for any other noncommercial purpose. There the right of publicity is significantly constrained by the First Amendment privilege of free speech.

Unfortunately for Schwarzenegger, because of the political and 'transformative' nature of ODM's bobble head, favorable precedent is in short supply.

A federal appeals court reached such a conclusion concerning trading cards that featured the caricature and parody of prominent baseball players. Cardtoons produced trading cards that ridiculed many Major League Baseball players. The court recognized Cardtoons' First Amendment defense.

Parody is a valuable form of self-expression and social criticism and, according to the court, “the last thing we need, the last thing the First Amendment will tolerate, is a law that lets public figures keep people from mocking them.”

The limited cases on point illustrate that the First Amendment may outweigh the rights of publicity for all public figures, including celebrities who sell their own image. However, Schwarzenegger is not just any celebrity—he is also the governor of California.

The law has long protected the public's right to subject politicians to unbridled, unrestrained commentary and criticism.

Fortunately for Arnold, ODM has apparently agreed to settle the dispute. ODM announced in early August that it intends to continue to market the Schwarzenegger dolls; however, the 8-inch tall bobble head will be stripped of its assault rifle and military bandoleer. Additionally, a portion of the proceeds generated from Schwarzenegger dolls will be donated to Arnold's All-Star school program.

ODM's decision to end its battle is understandable, although disappointing to some. Arnold Schwarzenegger is the natural focus of political free speech. If he can't accept the public's right to make fun of him, he should look for another starring role.