On the Media: Key chain with Sarah Palin sound bites raises free speech issues

Sarah Palin kills a caribou and provokes a debate over animal rights and whether she really knows how to shoot. She jumps into the furor about the mass shooting in Arizona and sets off a second tempest about anti-Semitism. Now a gadget maker has begun selling a talking key chain that spouts recorded Sarah-isms. Could a discussion about free speech versus an individual’s right to control their image be far behind?

Palin may be too busy tending to her multimedia empire and thinking about a run for president to worry about a pocket gewgaw that uses her voice. “We eat, therefore we hunt” and “You can see Russia from Alaska,” says the device “Sarah Palin in Your Pocket,” along with nine other recordings. No celebrity impersonator here. This is the real Sarah P.

Palin could not be reached on this momentous issue. She would not be alone, though, should she seek to invoke a legal protection known as the “right of publicity.” President Obama and First Lady Michelle Obama did it, without going to court, and won. Former Gov. Arnold Schwarzenegger sued, when a small company created a bobblehead doll in his likeness but, after a settlement, the dolls kept coming.

Individuals have the right to control their own identity but, not infrequently, that right crashes into the 1st Amendment. That gives citizens the freedom to satirize their leaders and other public figures. Let’s face it — if politicians can’t abide our sacred right of mockery, can they possibly be ready to balance the budget or face down terrorists? Not likely.

Palin, as usual, makes a vexing case because we don’t know quite what she is. Reality star? Commentator? Politician? We might feel somewhat more forgiving of a mere performer who fights to control his or her name, branding and personal image. (Chipper aphorisms included!) But if she’s a presidential candidate? Break out the T-shirts, board games and trifles.

I shot an e-mail to a Palin representative but didn’t hear anything back. That’s not surprising, given the avalanche of queries that flood the former Alaska governor and her handlers. Palin seldom gives interviews, anyway, partly because of a distrust of the “lamestream media.”

I got curious about the legal issues surrounding the Palin key chain when my daughter dropped one in my Christmas stocking. I figured this had to be an unauthorized bauble since “Sarah Palin in Your Pocket” ($9.99 retail) features the former governor’s aw-shucks-iest moments.

New Orleans businessman Steve Winn said he has sold about 35,000 of the key chains since they debuted last summer. Sales peaked after Palin said in October that she would consider entering the presidential race in 2012.

Winn, 49, attributed “Palin in Your Pocket’s” popularity to the tone and lilt of Palin’s voice. “It’s the rhythm, the cadence, the cartoony up and down of her voice,” said Winn. “I don’t know how to describe it. It’s beautiful. It’s enchanting!”

The graphic designer has been making talking key chains for about 17 years. He started with “Cajun in Your Pocket.” “Mr. T in Your Pocket” has sold the most, some 800,000 devices over about a decade.

Winn said his company, Emanation Inc., signed licensing deals — with 10% to 25% of the proceeds going to the subject — to use Mr. T, the Three Stooges and others.

But he said others, like a key chain featuring former New Orleans Mayor Ray Nagin pleading for help for his city after Hurricane Katrina (“Da Mayor in Your Pocket”), amounted to political parody and did not require a licensing payment.

“It’s a free speech issue,” Winn said. “Like this one is a free speech issue. If you look on the market, there are Sarah Palin dolls and T-shirts and all this other stuff. I’m just one of those Americans, flexing their free speech muscles.”

That’s going to strike some people, particularly Palin fans, as a rationalization for profiteering off Palin’s image.

But in past cases involving the image of public figures and, particularly, politicians, 1st Amendment advocates have argued it’s only right that individuals have wide latitude to play off the images of public officials, even if they’re making money by doing so.

Schwarzenegger sued in 2004 when an Ohio firm produced a bobblehead doll in his image. His lawyers argued that the company merely used Schwarzenegger’s image to sell the product.

But lawyers for the toy maker argued that the governor’s publicity rights did not trump the 1st Amendment rights of the doll maker. They compared the doll — which had Schwarzenegger in a suit with a gun and bandoleers — to a “three dimensional political cartoon.” When cartoons are sold, lawyer William T. Gallagher told an online law journal, “nobody would attempt to argue that they are not core protected political speech under the First Amendment.”

The two sides settled, allowing Ohio Discount Merchandise (which also made Hillary Rodham Clinton dolls, among others) to continue to produce the bobbleheaded governor. The novelty-maker agreed to drop the gun and to give a portion of the proceeds to a Schwarzenegger-supported after-school program.

Last year, the White House made it clear it did not approve when President Obama and Michelle Obama’s images were used in advertising campaigns. When the president appeared on the Great Wall of China in a Weatherproof-brand jacket, the manufacturer used the image — notably in a billboard over New York’s Times Square.

Similarly, People for the Ethical Treatment of Animals (PETA) did not have permission when it added Michelle Obama to a montage of famous women who shun wearing fur.

The Obamas did not threaten legal action, but PETA and the jacket maker agreed to pull the images anyway. Businesses and nonprofits have less latitude to use celebrities or politicians for such third-party endorsements.

One important consideration for California courts in “right of publicity” cases is how much the end-user transforms the original image or material. If they reprocessed or re-imagined the original material, the new content is “transformative” and they stand a much better chance of receiving free speech protection.

States apply varying standards to judge what speech is protected. Missouri, for example, would take a dimmer view of taking a public figure’s images or words when the purpose appeared primarily to be making money.

Winn took recorded snippets of Palin’s public statements and put 11 of them in the pink, palm-sized device. Defenders of intellectual property and celebrity images would argue he added no real value or commentary to Palin’s words. First Amendment purists, and Winn, would counter that editing the recordings and throwing them together on a key chain made the audio bursts into something entirely new.

Whimsy, and thievery, are both in the eye of the beholder.

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