Personality Rights and the Shifting Persona
posted by Jacqueline Lipton
First of all, thanks so much to Dan for inviting me to blog this month and for the lovely introduction. I know that amid all the speculation about potential Supreme Court nominees this may seem a little frivolous, but anyone who knows my recent work will be aware of my current fascination with the American right of publicity. I suppose my interest stems from the fact that I studied law predominantly in countries with no such right so I’m intrigued with how it works in the United States. One potential new personality rights issue I came across online recently (and unfortunately I’m going to show my age here) relates to David Bowie’s son from his first marriage – Duncan Zowie Haywood Jones. Those of us from my generation or before may remember that as a young boy, Bowie’s son was generally referred to as Zowie Bowie, and later Joey (or Joe) Bowie. Later in life, he reverted back to his given first name and now goes by “Duncan Jones”. Although Mr Jones Jnr has previously led a relatively quiet life outside the limelight, he has recently directed his first feature film, Moon, which will be released commercially this summer. As a director he is known as “Duncan Jones”, although the public is still aware that he has also been known as “Zowie Bowie”.
Prior to Duncan Jones’ entry into the public eye as a movie director, an American singer called Chris Phillips, adopted the name Zowie Bowie for his onstage persona. He was aware that it was the name of David Bowie’s son and was using it as a draw for people to see his show. He says that he never claimed to be David Bowie’s son, but used the name to promote the “Zowie Bowie state of mind”, assuming that people wouldn’t pay money to see “Chris Phillips”.
Later, Chris Phillips was joined in his act by Marley Taylor, and now together they use the name “Zowie Bowie” to refer to themselves as a singing duo performing in Las Vegas. They seem to have developed quite a following, and have registered the domain name “zowiebowie.com” to advertise their upcoming shows. Duncan Jones appears to have been unaware of the existence of the singing duo and found out about their act by accident when a British newspaper accidentally published a photograph of Chris Phillips in a story about the real Duncan Jones. As a result, Jones reached out to Phillips in an email and suggested they meet up when Jones visits Vegas for a professional function.
So it sounds like Jones is OK with Phillips’ and Taylors’ use of his name for the time being, but will this always be the case? What happens if Jones becomes increasingly famous as a movie director and the press starts referring to him under his original “Zowie Bowie” moniker? Will it be worth it for Jones to tussle for “return” of the name/persona from the singing duo? And what of the domain name? As I mentioned in a recent article, the current domain name regulations don’t protect rights in personal names unless they have attracted trademark status. If anyone has a trademark in the name “Zowie Bowie”, it’s presumably the singing duo rather than David Bowie’s son.
I’m not aware that much has been written about personality rights and what I might call “shifting personas”. Unlike trademarks, personality rights are probably much more susceptible to this “shifting” phenomenon as individuals grow and develop their personal and professional identities. The question for me is whether the law should do anything about this. In the Zowie Bowie situation, obviously the singing duo was taking full advantage of a persona that didn’t really exist in commercial practice. Duncah Jones was not using the name professionally or commercially, but people were aware of its significance as the name of David Bowie’s son. Pop music fans may easily have been “tricked” into assuming that a flashy pop singer using the name “Zowie Bowie” was the son of David Bowie, even if Phillips never actually said that he was David Bowie’s son. On the other hand, is there anything wrong with this in a free market? It doesn’t seem to have hindered Duncan Jones from developing his own independent career as a movie director, and maybe the confusion created by the singing duo will end up bringing more attention to both the singers and the director – to everyone’s mutual benefit in the end? I’d be interested in the thoughts of anyone who is as fascinated with personality rights as I am – although I know some folks are going to say that this kind of situation highlights exactly what is wrong with recognizing personality rights in the first place.
May 4, 2009 at 10:53 am
Posted in: Intellectual Property
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Responses (2)
James Grimmelmann - May 4, 2009 at 12:35 pm
Jones is also responsible for the most remarkable act of self-plagiarism (warning: self-link) I’ve ever seen. He directed a music video, then liked the result so much he directed it again as a French Connection ad. Same cast, same locations, same sequence of shots. It’s uncanny — and it raises strange and interesting copyright issues.
Jacqui Lipton - May 4, 2009 at 4:15 pm
Thanks, James. You always come up with the most amazing pop-culture facts (so I guess I should have checked on this story with you first). I knew about the FCUK video Jones had directed, but had no idea he had ripped off his own earlier video. Truly bizarre…
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