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Those who have followed the career of James Franco, and at times it has almost been hard to avoid, are aware that the actor had a period where he was a perpetual student, described in 2008 in Vanity Fair as displaying a “pan disciplinary omnivorousness.” He has a bachelor’s degree in English from UCLA, did graduate studies at Columbia, NYU Tisch, Yale and Brooklyn College, and has lectured at the UCLA School of Film, Television and Theater. Since English, writing and other creative endeavors were part of his studies, presumably along the way he might have learned a few things about the First Amendment, copyright law and the fair use provisions.

But whether this was a gap in all of Franco’s study, or whether it occurred while he was allegedly asleep in class (Franco denies that charge, on the basis of it being a bonus lecture), the creative dynamo and education addict seems to have had no qualms about shutting down a Cranston RI-born show, James Franco and Me, when it dared to book a short August run in New York at the People’s Improv Theatre (PIT). Multiple media outlets, attuned to covering Franco in his many ventures, briefly reported the creative censorship in July, including Salon and The New York Times.

Some reports at the time suggested that the play, by and starring Kevin Broccoli, was about Franco. Broccoli disputes that claims, saying, “In the show, it is stated that he’s fictional. It’s even suggested he might be an imaginary friend. Nothing that he says in the show is a direct quote of his. There are no quotes from any of his movies. As far as I know, nothing that ‘he’ talks about in the show actually happened in real life.”

Kevin Broccoli

“But the show is highly autobiographical on my end. So the really bizarre thing about this, for me, is it really does feel like someone’s not allowing me to tell my own story, because they want to prevent me from just using some celebrity’s name in something.”

It is well established that parodies of people are permitting under the fair use provisions of copyright law, though to be accurate Broccoli wasn’t parodying a written work, but rather playing with the persona of a public figure. Whether or not the show was funny or serious is irrelevant, since parody need not serve only comic purposes. Broccoli asserts that he has taken nothing specific from the public record of Franco’s life, only the idea of James Franco, public figure.

The cease and desist letter, from attorney Thomas B. Collier of Sloane, Offer, Weber and Stern was sent not to Broccoli, but rather to PIT, prompting them to cancel the James Franco and Me booking out of concern of being subjected to legal action. It claims, in part, Franco’s right of publicity, as well as asserting trademark violation and unfair business practice according to California Business and Professions Code Section 17200 and California Civil Code Section 3344, which the letter quotes as follows:

“Any person who knowingly uses another’s name, voice, signature, photograph or likeness on or in products, merchandise or goods for the purposes of advertising or selling or soliciting purchases of products… shall be liable for any damages sustained by the person or persons injured as a result thereof.”

The New York statutes regarding right of publicity can be found here.

But Epic Theatre Company, Broccoli’s Rhode Island based troupe, never employed Franco’s voice, signature, or likeness (a local publication created an image juxtaposing Franco and Broccoli’s faces), and even if it did use his name, it wasn’t to sell a commercial product as meant by the statutes invoked. Artistic use falls within the First Amendment, which Mr. Collier omits, presumably to frighten PIT and through them, Broccoli and Epic. The letter, incidentally, concludes by asserting that it is itself a copyrighted legal communication, and therefore can’t be published in whole or part. More scare tactics.

With the threat of such action hanging over the show, Broccoli said he has been unable, to date, to secure an alternate venue. In fact, even when he remounts the show for a single performance this Saturday back in Rhode Island, he is excising Franco and calling the show __________and Me, because he can’t afford to defend himself from actions by Franco and his attorneys. He likens the show he’ll now perform, as a benefit for the ACLU, it to the internet parody “Garfield Without Garfield.”

What has taken place here is that James Franco and Me has been shut down because Kevin Broccoli and his company don’t have the financial wherewithal to battle a celebrity with considerably greater resources. His first amendment rights have been trampled because he isn’t wealthy enough to fight back, and so his play, at least in its original form, is silenced.

The situation recalls that faced by David Adjmi’s 3C, a dark parody of the television series Three’s Company, which was kept out of production following its premiere at Rattlestick Theatre by a specious claim from the rights holders to the original series, who claimed that, among other things, it would damage their opportunities for commercial exploitation of the then-35 year old sitcom in the live theatrical marketplace. In that case, Adjmi could not afford to fight the case alone, but was supported by the law firm of Davis Wright Tremaine and by the Dramatists Guild and Dramatists Legal Defense Fund. The court ultimately ruled in favor of Adjmi and the play, which is now receiving productions – including, coincidentally, one last month at Epic Theatre.

Arts Integrity contacted Bruce E.H. Johnson, a partner at Davis Wright Tremaine to ask his thoughts about the cease and desist letter sent to the PIT in regards to James Franco and Me.

“In my opinion, this claim is bogus,” wrote Johnson, in response to e-mailed questions, which included inquiries as to whether “right of publicity” laws come into play in this case.  “The right of publicity applies only to advertising and commercial use; it does not apply to a play, which is absolutely protected by the First Amendment.”

Johnson continued, “Any advertisements for a First Amendment product, like a play, are also protected by the same First Amendment principles.  From Steven G. Brody and Bruce E.H. Johnson, Advertising and Commercial Speech: A First Amendment Guide at 2-30 (2d ed. 2017): ‘The courts normally afford full First Amendment protection to advertising promoting speech in books, movies, and other fully protected media.’   And the fact that ‘tickets are being sold’ to the play doesn’t make it a commercial product.  This First Amendment principle was affirmed by the US Supreme Court in New York Times v. Sullivan (1964), finding absolute First Amendment protection: ‘That The Times was paid for publishing the advertisement is as immaterial in this connection as is the fact that newspapers and books are sold’.”

In Johnson’s assessment, “I can’t think of any situation where a celebrity sued for a fictional portrayal in a play.  Given the absolute First Amendment protection here, such a lawsuit would be immediately tossed out.” Broccoli notes that the New York Musical Festival was advertising a show entitled Matthew McConaughey and The Devil as part of their 2017 season. Woody Harrelson is also a character in the show.

It is particularly worth noting that James Franco and Me is not even the first theatrical piece to prominently invoke Franco. In Chicago, The Gift Theatre presented Under The Gun Theater’s Dear James Franco, an improvised evening of reading celebrity letters in 201, which was reviewed in Chicago outlets, including The Reader. Promotional copy in the Goldstar website read, in part, “Though the night is being called Dear James Franco, the letters are not necessarily written by or to the Pineapple Express actor, but judging by the hilarity of previously published open letters to Franco (as seen in Slate, Gawker and more), it sure wouldn’t hurt.”

But in the meantime, without the means to defend himself or his play, Kevin Broccoli is being – because he’s taking a creative approach in response to censorship he’s not equipped to fight – partially silenced. Perhaps someone or some firm with the legal resources and expertise will step up to challenge Franco, Collier, and his firm, because every time a groundless cease and desist is allowed to curtail the creativity of artists, the whole field suffers.

Of course, Mr. Franco is even a fan of performance art, and given his proclivity for perpetual learning, perhaps he can get a quick law degree and defend Kevin Broccoli from James Franco. That would be justice indeed.