"Putin Has Come To Sue You, Dobby":
Does The Russian President Have A Case Against the Obsequious Harry Potter House-Elf?

By JULIE HILDEN


julhil@aol.com
----
Tuesday, Feb. 04, 2003

Perhaps only pure escapism, in the face of what seems to be impending war, can explain the recent flap over the alleged resemblance between Russian President Vladimir Putin and the "Harry Potter and the Chamber of Secrets" computer-generated character Dobby.

Many seem to see the likeness. Indeed, the BBC felt compelled, when juxtaposing images of the two, to add the following tongue-in-cheek caption: "President Putin is on the right." And in a poll on the topic, it reported that those who saw the resemblance outnumbered those who denied it.

What does Dobby look like? Various reviews of the movie describe Dobby as "a wrinkled elfin slave creature" (Salon.com), "a computer-generated elf with a voice more jarring than Jar Jar's" (Rolling Stone), "a noodgey house-elf" (Entertainment Weekly), "a masochistic elf who comes off as a Yoda-like puppet without a shred of sense or cuteness" (Christian Science Monitor), and "annoying," "aggressive," and "obsequious" (Chicago Tribune).

Perhaps the last word belongs to the Hollywood Reporter, which describes Dobby as "a neurotic elf ... who incessantly grovels and punishes himself with self-abuse worthy of a medieval flagellant."

No wonder some Russians are upset. But do they have a legal case? Amazingly, they might - but it would be an exceptionally weak one.

The Right of Publicity

Even if Russian law provides some sort of relief, the case would likely be brought in California, for violation of what is called the "right of publicity." There, jurisdiction over the movie studio defendants would be easy to assert.

A violation of the right is defined by California statute as an unauthorized use of a person's "name, voice, signature, photograph, or likeness, in any manner," for "purposes of advertising or selling." That right (which also comes from California's common law) is the reason that a company cannot, for example, just put Putin's name and face - or yours or mine, for that matter - on a bottle of vodka without consent.

Obviously, if he wanted to sue Dobby's creators, Putin would have to rely solely on the "likeness" language. He would also need to persuade a court that his image has been used for commercial purposes. (The fact that Dobby is the star of numerous posters touting the movie, and has become a LEGO figure - albeit one that according to one epinions.com reviewer, "needs work" - would be helpful.)

On the "likeness" issue, California courts have made clear that a "likeness" need not be exact to be the subject of a "right of publicity" lawsuit. Instead, according to the panel of the U.S. Court of Appeals of the Ninth Circuit that decided Wendt v. Host International, a "likeness" might only bear an "impressionistic resemblance" to the plaintiff. Accordingly, a robot resembling an actor can be the basis for a right of publicity violation, even if it clearly is a robot.

The key to the claim, the panel made clear, is "appropriation[] of the plaintiff's identity," not of his or her exact likeness. Accordingly, Ninth Circuit Judge Alex Kozinski, who wanted to rehear the Wendt case, has asserted that this interpretation of "likeness" is so broad as to reach "anything at all that evokes that person's identity."

What If An Image Is A "Likeness" of A Number of Different People?

The truth is, Dobby does resemble Putin, but not that much. And it's not just because one is a computer-generated character, and the other a person.

Consider, by contrast, another California "right of publicity" case, White v. Samsung Int'l. There, Wheel of Fortune's famous letter-turner, Vanna White challenged a commercial showing a robot turning letters on a game show as a violation of her "right to publicity," on the ground that it employed her "likeness" without her consent. White won in part because the robot was obviously meant to refer to, and only to her. Indeed, that was the joke: If viewers did not identify the robot as a representation of Vanna White, the commercial failed to make its point.

Dobby, on the other hand, resembles a number of people (and creatures). For one thing, Dobby himself bears a significant resemblance to the partially computer-generated character Gollum, a.k.a. Smeagol, in the movie The Lord of the Rings: The Two Towers.

(Incidentally, Smeagol similarly inspired a storm of obloquy from critics, who deemed him "spindly limbed, devious and hate-wracked" (Chicago Tribune), "wizened," "fetuslike," pitiable," (Salon.com), and "an infantilized wreck" and "hissing, bitter child-man" (New York Times) who resembles "a wasted junkie" (Rolling Stone). Perhaps Dobby and Smeagol found some consolation in swapping reviews.)

And Smeagol, in turn, has been compared by The New Yorker's Anthony Lane to "Ross Perot after ten years on the Atkins diet." And that leads, by the principle of transitivity, to another comparison: Dobby, too, bears more than a passing resemblance to Ross Perot - and actually, come to think of it, to our Commander-in-Chief.

Could it possibly be the case, then, that Ross Perot, Putin, and George W. Bush all have "right of publicity" claims against the hapless Dobby (or, actually, its creators)? The ridiculousness of this scenario suggests that for an image to truly be called a "likeness," it needs to be a unique likeness - a likeness, that is, of one person alone, or at least, one person predominantly.

Finally, another problem with the contention that Dobby is a "likeness" of Putin is that his character and actions do not resemble Putin's at all. No one, to my knowledge, has claimed that Putin is "noodgey," "masochistic," or "obsequious." Words such as "enigmatic" and "pragmatic" come to mind instead. Indeed, in Russia, Putin is actually the subject of a personality cult, to the point that he has had to ask citizens not to make busts of him.

Dobby Is Closer to Parody Than A Violation of Putin's Publicity Rights

But of course, libel law doesn't work that way. Unflattering portrayals of public figures are solidly protected as parody.

For instance, the recent book My Presidentiary - allegedly an account of George W. Bush's term that displays his face and even purports to be authored by him - is solidly protected by the First Amendment as parody. It thus couldn't be the basis of a defamation suit or even of a right of publicity suit, despite its flagrant use of Bush's "name," "photograph," "likeness" and, indeed, his "signature."

In sum, Bush couldn't sue the real authors of My Presidentiary, because the Constitution would get in the way. And anyway, he wouldn't. He'd only look silly, and right now, he has more important things to worry about. Perhaps Putin, or the Russian law firm that wants to bring his case, should take a page from his book.


Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Currently a freelance writer, she published a memoir, The Bad Daughter, in 1998. Her first novel, Three, will be published in the U.S. in August 2003 by Plume, in the U.K. by Bantam, and in French translation by Actes Sud.

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