Lynch veto of J.D. Salinger bill right thing to do

Gov. John Lynch made the correct call Tuesday when he vetoed legislation intended to prohibit the commercial exploitation of individuals without their consent.

Not because we aren’t sympathetic to the original intent of the bill (SB 175), but because the final version – as amended by the House of Representatives – is written far too broadly and could have a chilling effect on free speech.

As such, we urge the House and Senate to sustain the governor’s veto when it is put to an override vote later this month.

Introduced last year by Sen. Bob Odell, R-Lempster, the bill was filed at the request of the family of the late J.D. Salinger, the reclusive author of the literary classic, “The Catcher in the Rye.” Salinger died in 2010 at his home in Cornish.

Salinger’s son, Matthew, approached Odell to express his family’s concerns over the inappropriate use of his father’s image or name for commercial purposes, such as on coffee mugs, T-shirts and aprons.

In turn, Odell submitted legislation that, in essence, would prohibit the commercial use of the identity of a New Hampshire resident for up to 70 years after his or her death without the surviving family’s consent.

The bill was retained in committee until January, when the Senate approved an amended version by a voice vote. The House followed suit by passing a much stricter version of the bill in May, which the Senate endorsed a week later.

While the original bill was well-intentioned, the House stripped out a series of exceptions that would have applied to news stories or broadcasts, plays, books, speeches, musical compositions, documentaries, motion pictures, original works of art, video games and other works protected under federal law.

That has led to criticism and opposition from a number of organizations, including the New Hampshire Press Association, New Hampshire Association of Broadcasters, New England Cable & Telecommunications Association and the Motion Picture Association of America.

“SB 175 is broadly written, creating an expansive right of publicity that would severely put at risk all kinds of speech protected by the First Amendment,” wrote NHPA President Dan Tuohy in a letter to Lynch. “The law would encourage litigation from famous people and their heirs over the production of all manner of editorial, artistic and creative materials, including legitimate journalistic enterprise.”

As it stands, the retroactive bill covers state residents who died as far back as 1942. That means uses previously permitted could now be subject to lawsuits, which seems as impractical as it is unfair.

While we understand the exceptions were stripped out by the House Commerce and Consumer Affairs Committee in order to ensure its passage, that decision left open to broad interpretation what is an appropriate or inappropriate use of someone’s name or likeness.

Some critics have gone so far as to suggest that websites advertising a George Foreman Grill could be subject to litigation, or those hosting a review of “The Catcher in the Rye” would have to remove any reference to its author.

As we mentioned earlier, we’re not unsympathetic to the wishes of the Salinger family, even more so now that we’ve had the opportunity to peruse Salinger- or “Rye”-related references on thong underwear and puppy bowls.

But the version of the bill appropriately vetoed by the governor is too broad, too vague and undoubtedly would lead to too many lawsuits.