Schwarzenegger Is Fair Game

The bobblehead wars are heating up again, and that’s a good thing for our democracy. Earlier this year, Gov. Arnold Schwarzenegger, known as an aggressive litigator, filed a lawsuit to terminate a Schwarzenegger bobblehead doll dressed in a business suit and armed with an assault rifle and bandolier.

The governor claimed that the doll makers “misappropriated Schwarzenegger’s name, photograph and likeness for a commercial purpose” in violation of California’s celebrity-friendly “right of publicity” law, which was designed to halt the unauthorized use of a person’s name or likeness to sell commercial products.

Despite initial promises of a vigorous 1st Amendment defense, the Ohio bobblehead firm and its San Francisco intellectual property lawyers abruptly caved in to the lawsuit last month. Ohio Discount Merchandise Inc. agreed to an out-of-court settlement, yanking the gunslinging doll and replacing it with a gunless version. By allowing the gun-free doll to be sold, Schwarzenegger revealed that his real goal was to censor criticism about his political position on guns, not limit the use of his image on commercial merchandise.

But now, John Edgell, a Washington lobbyist and former staffer to Democratic congressmen, has thrown down the legal gauntlet by announcing plans to sell another unauthorized bobblehead of the governor, this time a “Girlie Man” doll clad in a hot pink dress and pink heels.

“The message is that, Arnold, you ran for office, we can praise you, we can criticize you, and we can poke fun at you,” said Edgell, who also created the gun-toting doll but did not participate in the settlement. “And if you have a problem with that, sue me.”

Does Schwarzenegger’s previous victory spell doom for the new doll and other politician-bashing art/merchandise?

Could President Bush, Vice President Dick Cheney and Defense Secretary Donald Rumsfeld successfully sue the maker of the $20 T-shirt that offers a crude play on the term “axis of evil”? Could John F. Kerry sue to puncture his punching-bag likeness? The answer must be no.

As the U.S. Supreme Court explained in 1988 when it dismissed an emotional-distress lawsuit brought by the Rev. Jerry Falwell against Hustler magazine for its satirical attack on the religious leader, the 1st Amendment protects “robust political debate,” including “caustic” political cartoons dating back to an “early cartoon portraying George Washington as an ass.” Just last year, the California Supreme Court tossed out a right-of-publicity lawsuit brought by Edgar and Johnny Winter, rock musician brothers, finding that a comic book portrayal of them as worm-creatures was protected by the 1st Amendment. “Prominence invites creative comment,” said the court; so long as the artist adds “transformative elements” or “creative contributions” such as “heavy-handed lampooning” or “subtle social criticism,” the work is constitutionally protected.

Given this ruling, the 1st Amendment should protect both Schwarzenegger bobbleheads. Transforming the powerful political figure into a silly, knock-him-down-to-size, 6-inch doll that nods yes to every question is a symbolic form of ridicule. The gun-toting Schwarzenegger bobblehead was certainly protected because its creator, Edgell, used the gun as “a political statement to tweak Arnold because he pledged to support an assault weapon ban and hasn’t done anything. Also because he stars in all these violent movies and has a pro-kid image.” The Girlie Man doll is similarly protected as political commentary.

Schwarzenegger complained that the doll capitalized on his movie image, not his political image. But as with Ronald Reagan, there is no separating the two personas. Schwarzenegger throws well-worn movie lines into his political speeches. His company’s website, Schwarzenegger.com, sells commercial merchandise and provides links to his official government website, governor.ca.gov. The Terminator is the Governator.

Once you run for political office, it’s hasta la vista, baby, to your right of publicity when it comes to dolls, bumper stickers and T-shirts that sell your image along with some commentary.