OR, What’s in a Name? Personal Names as Trade Names REMIXED.
By Barry Neil Shrum, Esquire (with Ashley Trout)
“That which we call a rose by any other name would smell as sweet.”
You may know this quote from William Shakespeare’s classic play Romeo and Juliet or from the more “pop-culture” reference by Anne Hathaway in The Princess Diaries, but chances are you’ve heard it countless times before. A name is a sense of originality and persona. It is what gives us our sense of identity and belonging. Some psychologists and sociologists believe that people with certain names, such as Curt, David and Jeff, receive more positive affirmations in life than persons with less desirable names, such as Agatha, Edgar and Mabel, which are more likely to evoke negative messages from teachers, professionals and acquaintances. One study reported in the Journal of Educational Psychology used elementary teachers to grade identical papers on which random positive and negative names were attached and, as you may have guessed already, the papers with the negative names routinely received the lower grade. Now you don’t have to wonder why supermodels and handsome actors have the most unique and appealing names! But Shakespear was perhaps trying to imply that it is the essense of the rose that matters, not its name.
One of the more popular articles on my blog dealth with this issue: What’s in a Name? Personal Names as Trade Names, written by my then-colleague, James H. Harris III for what was then a physical newsletter version of Law on the Row. In it, Jim elucidates the user of personal names a marks or trade names in business. I felt it was time to reexamine the issue in the light of celebrities, and extend the discussion to the rights of publicity sometimes also associated with a name. So, the subtitle of this article is appropriately What’s in a Name? Personal Names as Trade Names REMIXED.
The bottom line is that some names are more unique than others, but your name is what makes you uniquely “you.” So, what happens when someone “steals” our name? With the billions of people in the world, the chances significant that there is at least one other person who is walking around with the same name as you. Is there anything that a person can do to protect their “unique” identifier?
What happens, for example, when someone tries to take a name like “Heidi Klum” or “Albert Pujols”? Key figures or celebrities that, when you say their name, a certain image comes to mind. Or, perhaps the name evokes an event: mention the name Charlie Sheen, and you will likely think not only about his image, but more about his recent escapades surrounding his departure from Two and Half Men.
A very good example of this power of a name to evoke strong messages is the name “Sarah Palin.” Whatever your political opinion, whether you love Sarah Palin the Alaskan Governor/Vice Presidential candidate or whether you hate her, the name “Sarah Palin” evokes very strong thoughts, associations and yes, feelings. Look at the photographs associated with this article. What kind of feelings does that evoke in you? If you thought either was the real Sarah Palin, you are wrong. They are both actually impersonators – and different ones to boot! Yet, the images evokes the association and the feelings that make you think of the real Sarah Palin and her personal idiosyncrasies.
Sarah Palin is, of course, an American politician, formerly governor of Alaska, but best known as John McCain’s “choice” as the Vice President candidate for the Republican Party in the 2008 election. She is best remembered for her “cowgirl” image, folksy humor and distinctive, if annoying “wink”: but she is often also associated with her completely ineffective interview with Katie Couric that some say cost the Republican party the election that year – an interview greatly publicized by an impersonator.
Since the 2008 election, Palin has become a fixture on the Fox News networks. Whether she is expressing her opinions about issues such as abortion or gun control, Palin is anything but shy in making her voice heard. The result of all this publicity, of course, is that her television and cable “Q Score” has increased significantly.
With a character as polarizing as Palin, the result is often a proliferation of impersonators. It did not take long in the case of Palin – immediately subsequent to the interview – for Tina Fey to begin imitating the Couric interview on the Saturday Night Live. Impersonators, of course, trade off the personalities and idiosyncrasies of the imitated celebrity or public figure. Since the days of Rich Little, and his current replacement Frank Caliendo, the art of imitation has been a popular part of American pop culture. There is no doubt that Ms. Fey’s notoriety increased as a result of her performances. Imitation may be the most sincere form of flattery, but can it go too far? According to Sarah Palin and her handlers, it already has!
Tina Fey was just the first in a long line of Sarah Palin impersonators. Many people have since taken it upon themselves to impersonate Sarah Palin and trade on her persona, including perhaps the best known of the tribe, Patti Lyons and Patsy Gilbert. See, infra. So, the question is “Can Palin stop this type of activity?”
Not to sit on the fence, but the answer is maybe! Perhaps more precisely, she will be able, in a somewhat limited way, to enforce certain aspects of her persona and, in an even more limited way, the use of name in connection with certain services and/or goods.
We must first look to trademark, not copyright, for the answer to our quest. According to the U.S. Patent & Trademark Office, a trademark is a “word, phrase, symbol, or design, or a combination thereof, that identifies and distinguishes the source of the goods of one party from those of others.” Whenever you see the Golden Arches looming in the air, you immediately associate it with the burgers made by Mickey D’s – both trademarks of the McDonald’s corporation.
Likewise, whenever you hear the name “Sarah Plain,” chances are you picture a woman with long brown hair, most likely pulled back, thigh-length boots, and a pair of Kazuo Kawasaki 704 designer eyeglasses. Perhaps you see that aforementioned hackneyed wink she was so fond of using during the televised vice-presidential debates with VP Joe Biden. Whatever you see, the image of Sarah Palin is a very unique and distinctive image. And, more importantly, it is an association engrained in our minds.
So, since the image and name are so synonymous, does it follow logically that Sarah Palin can copyright her name? According to U.S. Copyright Law and historical interpretations thereof, it is well-established answer is “no, she cannot.” Since its creation by our Forefathers, the Copyright law has never protected mere “ideas.” In fact, Jefferson stated flat out that “