Is a bobblehead doll bearing the likeness of a celebrity-turned-politician an example of pure commercialism? Or can such a figurine represent a prototypical exercise of constitutionally protected speech? The answer to this question lies at the heart of the recently filed lawsuit that pits California’s right of publicity against the First Amendment. Oak Productions Inc. v. Ohio Discount Merchandise Inc.  Within a few months after Arnold Schwarzenegger took office as the Governor of California, Ohio Discount began offering an Arnold Schwarzenegger bobblehead, which depicted the governor in caricature, holding an assault rifle and wearing an ammunition belt.  Oak Productions, representing Mr. Schwarzenegger, accused Ohio Discount of using the governor’s name and likeness without his permission.  The fundamental dispute raised by Oak Productions’ lawsuit is whether, in connection with the sale of the Arnold bobblehead, Schwarzenegger’s right of publicity should trump the First Amendment rights of Ohio Discount.

Two California Supreme Court decisions articulate the test to be used in balancing one party's right of publicity against another's right of free speech.  In essence, the district court (and, perhaps, the Ninth Circuit) will have to determine whether Schwarzenegger’s likeness is merely “one of the ‘raw materials’ from which an original work is synthesized,” or whether the star’s likeness is “the very sum and substance” of the bobblehead.

This lawsuit highlights the fact that, at present, a person has only two ways to be sure that his or her work will not violate a celebrity’s right of publicity. Either one can opt not to use the celebrity’s name, voice or likeness at all, or one can wait for the judicial system to decide the question. This Hobson’s choice may chill the very artistic and political expression the First Amendment was intended to protect. 

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