Comment by Charles Cronin

This claim by singer Darlene Love against Scripps Networks follows her nearly identical claim in 2015 against Google, another deep-pocketed defendant. (Unfortunately, Google settled – presumably deciding it was cheaper to do so than to litigate.) Both involve assertions of infringement not of any copyright interest belonging to Love, but rather of her right of publicity.

The claim against Scripps was lodged in federal court in California. Given the economic significance of the entertainment industry here, the state legislature and courts have been unusually solicitous toward well known entertainers who claim that commercial ventures have capitalized upon personal attributes, like their voices or physiognomies, without their authorization and/or remuneration.

This solicitude is regrettable. In his excellent discussion of the legitimacy of the law’s accommodation of celebrities’ publicity rights (Private Ownership of Public Image: Popular Culture and Publicity Rights 81 Calif. L. Rev. 125 [1993]) Michael Madow points out that widespread public recognition of attributes of a particular celebrity is not simply the reward for the individual’s labor in seeking and developing that recognition. He notes: “A celebrity… does not make her public image, her meaning for others, in anything like the way a carpenter makes a chair from a block of wood. She is not the sole and sovereign “author” of what she means for others.”

Scripps legitimately acquired permission to use the “Christmas” song, and Darlene Love’s recorded performance of it. Presumably what irked the plaintiff was the fact that Scripps, a wealthy media empire like Google, didn’t give her a cut of the budget for the advertisement in question. But why should it? There are many recordings of “Christmas”, and the fact that Google licensed use of Love’s doesn’t establish that it was deliberately trying to establish in the minds of consumers that Love was endorsing its products and services.

The tenuous base of this claim is reflected in the inflammatory tone of the complaint (basically cut and pasted from the previous complaint against Google) in which Scripps’ legal and reasonable business practices are described as “loathsome” and “despicable”, and having resulted in an ad establishing that Love had endorsed Scripps’ products “of dubious quality”.

Far more dubious are the stated motivations for this claim…

As of August 30, 2016 Darlene Love had abadonned this claim, presumably after extracting a financial settlement from Scripps, as she did in her earlier dispute with Google.

Complaint: PDF