Online comic retailer Heavy Ink recently received a cease and desist letter from Olivia Munn’s attorney regarding a comic available for pre-order on their website. For those unfamiliar with Olivia Munn, she is an actress, host of G4’s Attack of the Show, and general “gaming celebrity.” The letter is addressed to Heavy Ink’s “DMCA Agent” and states that:
[Heavy Ink] and any other party associated with the Comic Book does not have Ms. Munn’s permission to use or exploit her image and/or name in any manner whatsoever. On behalf of our client we demand that you immediately cease and desist all further production, advertising, distribution and other exploitation of the Comic Book, remove all advertisements, and destroy all copies of the Comic Book.
In response, Heavy Ink President Travis Corcoran sent the following, excerpted in part:
[I]t is clear that [Olivia Munn] is a public figure. As a public figure, the use of her likeness meets the tests for the parody copyright exception set forth in both Campbell v. Acuff-Rose Music, Inc. and the more recent Suntrust v. Houghton Mifflin.
As such, we have no intention of taking down our webpage, destroying any inventory, or refusing to offer the comic for sale.
The full response can be found here.
After briefly reading these materials, a few things seem screwy. First, it is odd that Munn’s attorneys addressed their letter to Heavy Ink’s “DMCA Agent” when they are asserting her exclusive right of publicity, not making a copyright claim. The DMCA, as far as I can recall, is solely concerned with copyright law and does not contain any provisions regarding the right of publicity.
Second, Heavy Ink’s response is misguided because the parody exception to copyright does not apply to the right of publicity. There is a parody exception to the right of publicity, but the cases cited by Mr. Corcoran do not apply. It is impossible to determine whether the parody exception would apply to an unreleased comic, but the product description may provide some guidance:
Olivia Munn conquers the world in this hilarious spoof! Hollywood’s hottest geek girl, Olivia Munn, hosts G4’s Attack of the Show, but while at comic con, she is attacked by a swarm of fans. Unable to escape, her gamma-irradiated cells explode and unleash the fury of The 50-Foot Womunn. It’s the showdown of the century! Geeks vs Munn! Let’s get ready to rumble!!
Based on this brief description, it doesn’t appear that the parody exception will apply, as the comic seems to merely grant Munn superpowers and place her in a ridiculous scenario. The comic does not appear to offer any sort of commentary or criticism regarding Munn, which is a necessary component of parody.
While there are many issues to consider, including First Amendment arguments, Heavy Ink was right to direct Munn’s complaints to the publisher. As a mere retailer, it seems odd that Heavy Ink is the one being targeted.
