#for relevance richard m. is one of the voice actors

[movietonight]

Since it’s still Disability Pride Month I decided to share this relevant 2008 interview between blind journalist David Block and David Ogden Stiers 

David Ogden Stiers’ impressive 30 plus year acting career spans Broadway,

concert halls, movies and television. He has worked with Hollywood

A-listers such as Woody Allen, Tom Hanks, and Jim Carrey. He has been the

Associate Conductor for the Newport Symphony Orchestra for over 15 years.

He has also lent his distinctive voice to numerous PBS documentaries and

the 2006 motion picture Lady in the Water. However, despite his remarkable

and varied career, he is probably best remembered for his brilliant

portrayal of the tough, yet sometimes sensitive war-time physician, Major

Charles Emerson Winchester III on M*A*S*H from 1977 through 1983.

Stiers’ illustrious career makes him a household name and face. But, what

fans may not know about him is that he stuttered throughout his childhood,

adolescence, and even into his early acting career. Stiers said that being

an actor helped cure him.

“I didn’t stutter when the lines were written for me,” said Stiers.

“Without lines to read was another story. One day, I noticed that I wasn’t

stuttering anymore, with or without lines. I overcame it by not giving up,

by continuing to play roles, and by overcoming my fear of saying something

wrong, or sounding stupid.”

The fact that he stuttered was not his sole reason for compassionately

portraying people with disabilities.

Stiers said: “The task of loving people doesn’t have to do with their worst

aspects. It has to do with their best aspects. My feeling, we’re all the

same person but differently expressed. There’s some things I can do others

can’t, vise versa. We’re all accomplished. We’re all on the earth, and the

more we help each other get our tasks accomplished, the better our lives.”

This was exuded when he portrayed Dan Franklin, a special education teacher

in the 1977 movie, A Circle of Children. One of the themes of the movie

included special education teachers helping autistic children reach their

full potential.

While preparing for the movie the cast visited a classroom for autistic

children.

“We sat in the class with them,” said Stiers. “We sat on the floor with the

class. We did a lot with them.”

None of the children who appeared in the movie were autistic.

Being in the movie was not the only time that Stiers

interacted with autistic people. While on M*A*S*H, Stiers and other cast

members frequently interacted with William Christopher’s autistic son, Ned.

Christopher, who was the compassionate Father Mulcahy on M*A*SH, often

brought Ned to the set.

“Ned was beginning to function pretty well,” said Stiers. “Whenever Ned

felt comfortable enough to come over to a group of people who were talking,

he was immediately included. Ned was an intelligent young man who thought

at a rate of speed that I could never do.”

In 1976 and 1977 Stiers guest starred on The Mary Tyler Moore show, three

times, portraying the WJM Station Manager Mel Price, who happened to

stutter. At the time, Stiers stopped stuttering.

“I auditioned for the role and because it was terribly easy for me to

stutter realistically, they hired me.”

Stiers summed up Mel Price as being a falsely nice person. Stiers said that

this was particularly evident in episode 157, “Look at Us, We’re Walking.”

In that show, Mary Richards (Mary Tyler Moore) and Lou Grant (Ed Asner)

told Mel Price that if they didn’t get a raise, they’d quit. Price refused

and they walked out. At the end of the episode, Price asked them to return

and he even promised them a raise.

Stiers said: “that episode was like a forecast of what was to come in

corporate America. ‘You put in some good work; we’ll kill your 401k. If you

don’t like that, if you get upset and walk away, we won’t care. We’ll hire

someone better qualified for less money. If you want to go, then go!’

That’s pretty much how I view corporate business now. I don’t think that

they care about middle management or medium numbers staff.”

While on The Mary Tyler Moore Show, Stiers learned from the M*A*S*H writers

and producers that Larry Linville, who played Major Frank Burns, was

leaving the series and they hired Stiers to replace him.

“They wanted to keep the character number in tact,” said Stiers.

Although there were a number of episodes when Winchester was incredibly

benevolent, two of them dealt with him helping disabled soldiers.

In episode 188, “Morale Victory,” Winchester was kind to Private David

Sheridan (James Stephens) who thought that his dream of being a concert

pianist was ruined because of his permanently injured hand. Winchester

showed Sheridan that he could still pursue a meaningful music career, and

that his dream could never be silenced unless he allowed it to be.

“That episode was actually an idea and a present from Loretta Swit,” said

Stiers. Swit, who played Major Margaret “Hot Lips” Houlihan, had the idea

of having an affair with Private Sheridan but changed her mind because her

character had had flings with other wounded

Stiers said that the producers did not develop that episode because Stiers

used to stutter or because he portrayed Mel Price.

soldiers. Swit wondered who else could have a rapport with him. She knew

that Stiers studied at Julliard, so he became her obvious choice. She took

her idea to the producers and they liked it.

“They told me this was from Loretta,” said Stiers. “That was the hardest I

ever hugged her.”

“There are those serendipitous overlap realities that don’t actually know

one another,” said Stiers.

In 1987, four years after M*A*S*H ended, Stiers appeared on Matlock in

episode 26 “Blind Justice.” Stiers portrayed Arthur Hampton, a blind

sculptor who committed murder.

In episode 244, “Run for the Money” Winchester befriended Private Walter

Palmer (Phil Brock) who stuttered. Winchester told Palmer that from reading

his record, he knew that he had an incredibly high I.Q. To prove this, he

gave Palmer his copy of Moby Dick and told him that that the book was

worthy of his intelligence. When Private Palmer asked Winchester why he was

being so nice to him, Winchester changed the subject.

At the end of the episode, Winchester returned to his tent and played a

tape that his sister Honoria mailed him. She stuttered.

Stiers explained why Winchester refused to tell Palmer why he was being

kind and supportive: “It was part of the character trait that Winchester

would NEVER admit that he had been kind to someone. He would never admit

that that kindness came from a part of his heart that was wounded by

someone else’s trouble. He would not admit to things like moments of

compassion or insight. He maintained that awful glacial exterior.”

“The producers hired for me a blind advisor to be on the set,” said Stiers.

“She was a wonderful young lady with a gorgeous golden retriever, whose

name was unfortunately Andy. (There were two Andy(s) on the set, the Seeing

Eye dog and Matlock’s star, Andy Griffith.) I was not adept to being around

people with disabilities, never attaching my stuttering as a kid to anyone

else’s. I thought that I would never understand anyone else’s problems.

That changed when I was on Matlock. It was opening my head and my heart;

getting on with the empathy that we all need to bring to bear on getting

along with each other.” On the Matlock set, Stiers committed a memorably

embarrassing faux pas: “I would finish rehearsing a scene; I’d walk to the

woman and ask, `How did I look? Did I do everything right?’ I forgot that

she couldn’t see. She forgave me. We became good friends.”

Stiers’ advice to all aspiring actors and musicians, both able-bodied

and/or with disabilities is the same…… never give up!

[lawtorn]

ooc thoughts.   the newest episode of the  ‘from now’  podcast is so exciting!

[benrleeusa]

[Eugene Volokh] Lindsay Lohan, Grand Theft Auto V, the First Amendment, and the Right of Publicity

[Lindsay Lohan attends DailyMail.com & DailyMailTV Holiday Party with Flo Rida on December 6, 2017 at The Magic Hour in New York City. (Photo by Steven Ferdman/SIPA USA)]

The popular Grand Theft Auto V computer game has two characters allegedly based on Lindsay Lohan and on Karen Gravano (Mob Wives). Lohan and Gravano sued the game company (Take Two Interactive Software), claiming that this violated what is generally called their "right of publicity" (but "right of privacy" in New York). That right is often labeled the exclusive right to control the use of one's name, likeness, and other attributes of identity for commercial purposes -- but that shorthand can't be entirely accurate, since that would ban a wide range of First-Amendment-protected speech, such as unauthorized biographies and even newspaper articles about people (since movie, books, and newspapers are generally commercial ventures).

The New York intermediate appellate court rejected the claim, based on New York precedents that have narrowly read the relevant New York statute; the New York high court then agreed to consider the matter for itself. Shortly before Christmas, my Scott & Cyan Banister First Amendment Clinic students -- Alexandra Gianelli and Tracy Yao -- and I, with the indispensable and generous help of our local counsel, Daniel Schmutter (Hartman & Winnicki LLP), filed an amicus brief supporting the narrow view of the right of publicity, and a broad view of free speech protections. (The brief was on behalf of fourteen law professors who are knowledgeable on First Amendment law and intellectual property law, Profs. Eric M. Freedman, Brian L. Frye, Jon M. Garon, Jim Gibson, Eric Goldman, Stacey Lantagne, Mark A. Lemley, Raizel Liebler, Barry McDonald, Tyler Ochoa, Aaron Perzanowski, Betsy Rosenblatt, Rebecca Tushnet, and David Welkowitz.) Here's a quick summary of the case, from the intermediate appellate court decision:

[E]ach plaintiff alleges that defendants violated her right to privacy under New York Civil Rights Law § 51 by misappropriating her likeness for use in the video game "Grand Theft Auto V." This video game takes place in the fictional city "Los Santos," which itself is in a fictional American state of "San Andreas." Players control one of several main characters at various points in the game, engaging in approximately 80 main story missions as well as many optional random events. Plaintiffs allege that during certain optional random events, the player encounters characters that are depictions of plaintiffs.

Gravano alleges that in one of the optional random events in the video game, the character Andrea Bottino is introduced, and that her image, portrait, voice, and likeness are incorporated in this character. Specifically, Gravano argues that the character uses the same phrases she uses; that the character's father mirrors Gravano's own father; that the character's story about moving out west to safe houses mirrors Gravano's fear of being ripped out of her former life and being sent to Nebraska; that the character's story about dealing with the character's father cooperating with the state government is the same as Gravano dealing with the repercussions of her father's cooperation; and that the character's father not letting the character do a reality show is the same as Gravano's father publicly decrying her doing a reality show.

Lohan alleges that defendants used a look-alike model to evoke Lohan's persona and image. Further, Lohan argues that defendants purposefully used Lohan's bikini, shoulder-length blonde hair, jewelry, cell phone, and "signature `peace sign' pose" in one image, and used Lohan's likeness in another image by appropriating facial features, body type, physical appearance, hair, hat, sunglasses, jean shorts, and loose white top. Finally, Lohan argues that defendants used her portraits and voice impersonation in a character that is introduced to the player in a "side mission."

Here is the Summary of Argument from our brief, though you can read the entire brief here:

Using characters based on real people in works of fiction is a longstanding practice protected by the First Amendment. Creators often try to make their works true to life, and a large component of that life is celebrities. That has been done in a vast range of works, such as Brave New World, Forrest Gump, Midnight in Paris, and Seinfeld. The creators of video games, which are as protected by the First Amendment as are books and films, must have the same right.

When the state legislature enacted § 51 of the New York Civil Rights Law, it did not intend to restrict this commonly used artistic technique. Section 51 of the New York Civil Rights Law provides a limited right of privacy that prohibits the nonconsensual use of a person's voice, picture, name, or portrait for "advertising" or "trade" purposes. And New York courts have generally narrowly construed the statute as applying only to commercial advertising, to avoid conflicts with the First Amend­ment.

Because videogames are constitutionally protected creative works, like books and movies, the right of privacy statute does not apply to them, or to advertisements for them. Thus, Gravano's and Lohan's claims that Take-Two impermissibly used their likeness in Grand Theft Auto V, or in material promoting Grand Theft Auto V, must fail. (We accept for purposes of our argument the plaintiffs' assertion that the characters were indeed deliberately based on Lohan and Gravano -- though they appeared under other names -- and that viewers would recognize them as such. Of course, if that assertion is incorrect, that is even more reason to reject liability in this case.)

And this historical limitation on the right of privacy has helped New York avoid the problems faced by other jurisdictions, which have interpreted the right of privacy more broadly -- and, as a result, inconsistently, unpredictably, and with unacceptable subjectivity. Different courts applying rival tests have reached widely varying results on virtually identical facts. And both the predominate purpose test (urged by Gravano) and the transformative use test (urged by Lohan) have proved vague, too speech-restrictive, and open to discrimination in favor of what judges view as "high art" and against what they view as "low art." This court should continue reading the right of privacy as limited to commercial advertising, and thus affirm the judgment below.

And here's Part I, which argues that authors have long based characters on real people, and have a constitutional right to do so:

Creators have long worked real famous people into their fictional stories, and they have a First Amendment right to do so. "Fiction writers may be able to more persuasively, more accurately express themselves by weaving into the tale persons or events familiar to their readers.... No author should be forced into creating mythological worlds or characters wholly divorced from reality.... Surely, the range of free expression would be meaningfully reduced if prominent persons in the present and recent past were forbidden topics for the imaginations of authors of fiction." (Guglielmi v Spelling-Goldberg Productions, 25 Cal 3d 860, 869, 603 P2d 454, 460 [1979] (Bird, C.J., concurring) (concurrence endorsed by four of seven Justices).)

Thus, for instance, the creators of Seinfeld often introduced storylines where the main characters interacted with New York cultural icons to make the show's New York setting more realistic. The character "George Steinbrenner" repeatedly appears as George's boss; in one episode, Steinbrenner asks George to go to Cuba to recruit some of the country's best baseball players. In other episodes, "John F. Kennedy, Jr." meets Elaine at a fitness club and almost goes on a date with her, and "Calvin Klein" asks Kramer to model underwear for him. Similarly, the Tony-Award-winning musical Avenue Q includes Gary Coleman, the 1980s child actor, as a character. (All these characters were played by actors, not by themselves.)

Likewise, Aldous Huxley used Henry Ford's name as a deity-like reference in his 1931 novel Brave New World. The fictional society in that book reveres Ford as its creator: They celebrate Ford's Day and use his name in swearing (e.g., "Oh, for Ford's sake!"). When the book was published, Ford was a celebrity famous for revolutionizing mass production; in the late 1920s, he even tried to build his own utopian city, Fordlândia. By invoking Ford's name, Huxley instantly conveyed to his readers the principles underlying his fictional world -- efficiency, mass production, and consumerism.

Similarly, in one scene in Forrest Gump (Paramount Pictures 1994), Elvis Presley watches as Forrest begins dancing unusually because of his leg braces, and this ends up being the inspiration for Presley's signature gyrating dance moves. In other scenes, Forrest gets the Medal of Honor from Lyndon B. Johnson, and meets Richard Nixon and uncovers the Watergate scandal. [Footnote: Though New York does not recognize a post-mortem right of privacy, many other states do....]

In Midnight in Paris (Sony Pictures Classics 2011), the hero is an aspiring novelist who is transported to 1920s Paris, where he meets Zelda Fitzgerald, Ernest Hemingway, Pablo Picasso, and Salvador Dalí. These characters make the setting more realistic, and also advance the plot as they offer the hero advice and help him finish his novel.

The creators of the HBO show Silicon Valley similarly based a quirky character on Silicon Valley mogul Peter Thiel, co-founder of Paypal. Both the character and Thiel started fellowships to support young geniuses to leave school and start businesses; both built islands; and both are said to have similar speech patterns and personalities. The show also often mentions Mark Zuckerberg and other tech industry leaders to bring the culture of the modern computer business to life.

It is possible that the creators of some of these works could have gotten licenses from the people to whom they were referring -- or, what could be more difficult, from those people's scattered heirs. But they should not have to, and do not have to, get such permission (which in any event may be unavailable if the portrayal is not entirely flattering, or if the work is likely to prove controversial). Unauthorized biographies are as constitutionally protected as the authorized ones; likewise for unauthorized references to celebrities within broader works.

This case appears to involve the same literary trope as in the works discussed above: A video game set in contemporary Los Angeles may include characters based on actual celebrities -- Karen Gravano, a mob boss's daughter turned reality television star, and Lindsay Lohan, a child actress whom many grew up with -- to realistically evoke Los Angeles celebrity culture. These artistic choices shape the message that creators are trying to convey, and broadly construing the right of privacy would unduly limit First Amendment expression.

As courts have repeatedly recognized, the First Amendment must protect the right of creators to incorporate celebrity images in their creative works -- and thus must protect Take-Two's right to create a vivid, realistic portrayal of Los Angeles celebrity culture:

[*] "Because celebrities are an important part of our public vocabulary," "[r]estricting the use of celebrity identities restricts the communication of ideas" (Cardtoons, L.C. v Major League Baseball Players Assn, 95 F3d 959, 972 [10th Cir 1996] (upholding the right to use celebrity baseball player images in parody trading cards)).

[*] Celebrities "are widely used -- far more than are institutionally anchored elites -- to symbolize individual aspirations, group identities, and cultural values. Their images are thus important expressive and communicative resources: the peculiar, yet familiar idiom in which we conduct a fair portion of our cultural business and everyday conversation." (ETW Corp. v Jireh Pub., Inc., 332 F3d 915, 935 [6th Cir 2003] (upholding the right to use Tiger Woods' image in prints).)

[*] "Because celebrities take on public meaning, the appropriation of their likenesses may have important uses in uninhibited debate on public issues, particularly debates about culture and values. And because celebrities take on personal meanings to many individuals in the society, the creative appropriation of celebrity images can be an important avenue of individual expression." (Comedy III Productions, Inc. v Gary Saderup, Inc., 25 Cal 4th 387, 397, 21 P3d 797, 803 [2001].)

The right of publicity thus "has the potential of censoring significant expression by suppressing alternative versions of celebrity images that are iconoclastic, irreverent, or otherwise attempt to redefine the celebrity's meaning" (id.). And this Court should avoid this consequence by narrowly construing the right of privacy statute in a way that leaves creators free to build characters based on celebrities.

Later parts argue that

video games are as protected by the First Amendment as other expressive works,

New York state cases have largely (with some exceptions not relevant here) read the relevant state statute as limited to commercial advertising,

New York cases have read the statute as limited to explicit use of a person's name or likeness, and

the court should continue to narrowly construe the statute to avoid First Amendment problems -- problems that have amply manifested themselves in those jurisdictions that have used less speech-protective tests for the right of publicity.