Dancing Around Free Speech

In Sacramento, they call it “the Fred Astaire bill.” SB 209, authored by Senate President Pro Tem John Burton (D-San Francisco), seeks to give families of dead celebrities unprecedented power to prohibit or control how images of those figures are used in movies, television, books and other “works of expression.” This is a bad bill that could seriously erode freedom of speech and creative expression.

The law already bans commercial exploitation. When John Wayne’s image sells beer or Fred Astaire dances with a vacuum cleaner, it’s with the permission of and payment to the family. But Burton’s bill, introduced at the behest of Astaire’s widow and the Screen Actors Guild, would go much further.

A variety of media, including news shows and entertainment, is exempt under the current law from such control by heirs of the dead celebrities. The Burton bill would also have an exemption from such control for “works of expression” including news and public affairs programming. So far so good. But the exemption excludes any material that is digitally altered or is presented as fact when it actually is false.

It’s hard to find any form of entertainment these days that is not changed by computers in some fashion. And who determines whether something is false or not? Think of the images of famous people inserted into the movie “Forrest Gump.” In Don DeLillo’s prize-winning novel “Underworld,” the behavior of historical figures, including J. Edgar Hoover, is played with. Is that deception?

The bill’s proponents say they are trying to maintain the dead performer’s reputation so that the commercial value of the image is not diminished. But opponents note correctly that docudramas, for example, could be declared false under the law even if they did not affect the image’s commercial value.

Proponents say they are working on amendments to correct the grave flaws in SB 209 before it is heard in the Assembly Appropriations Committee. Even better would be to drop the bill altogether. The present law seems perfectly adequate in protecting the income of the heirs of Fred Astaire and others.