The other legal side of Leopold & Loeb

Edward J. Larson, Murder Will Out: Rethinking the Right of Publicity through One Classic Case

A really interesting story about the right-of-publicity fallout from the Leopold and Loeb case, providing a dramatic demonstration of the speech-suppressive effect of the right of publicity:

Levin described the chilling effect of the action on writers and publishers:

Nathan Leopold’s lawsuit seemed to spark a whole series of astounding cases. The descendants of Al Capone filed a multimillion-dollar claim for invasion of privacy against a television station that had broadcast a portrayal of the gangster’s life. Then came the case of the wife of the killer of Rasputin, who was suing a television network that had shown a dramatization of the event.

Suddenly an unease spread among writers and publishers, indeed all through the communications industry. If such cases were valid, an enormous source of material would be barred. A form of censorship threatened that was not only terrifying in a commercial sense, but that could in fact close off a perennial wellspring of art . …

The case was much more than a harassment. If any award at all should be made, it could establish an enormously restrictive precedent.

Levin’s fears were realized when the trial court largely accepted a broad no-commercial-use standard in granting Leopold’s motion for summary judgment on liability in 1964, Compulsion, which had sold over a million copies, went out of print; the movie producer withheld royalties; copies of the play were difficult to obtain.

…. Compulsion reappeared in print only after the 1964 judgment was reversed in a ruling that Levin called “a landmark decision in liberating writers and publishers from a growing threat.” (footnotes omitted)

The author’s proposal for a right of publicity limited to ads and endorsements glosses over the complications of an endorsement standard, but I liked the story a lot.