Image Rights: Valuable Intellectual Property

7 08 2018

IP Watchdog

Kelvin King & Raymond Weisner
May 4, 2018

The cult of celebrity keeps creating more and more wealth. And concurrent with protecting that, ‘Image Rights”’have been receiving a lot of publicity – as well as the attention of tax authorities. Even James Bond, Sir Sean Connery, has just discreetly protected his brand and trademarked his name. Documents filed in both the EU and the US show the veteran star is ensuring that he and he alone can profit from his name.

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Right of Publicity Risks For Producers Still Uncertain

25 07 2018

the IP law blog
Scott Hervey
July 5th, 2018

Often writers base characters on complete fiction, drawing from their imagination to build a character’s various facets.  However, on certain occasions a writer may base a character on a living person.  Sometimes such a portrayal is factual and other times it may be a combination of fact and fiction.  Such was the case, claimed legendary actress Olivia de Havilland, in her lawsuit against FX Networks over her portrayal in the FX docudrama Feud: Bette and Joan.

Feud told the tale of the infamous silver screen ongoing battle between Bette Davis and Joan Crawford.  De Havilland claimed that Catherine Zeta-Jones’s portrayal of her in the show (which lasted all of 17 minutes) violated her right of publicity because she did not give the creators of Feud permission to use her name or identity.  Additionally, de Havilland also claimed that FX portrayed her in a false light by taking certain creative liberties with the story (namely, the inclusion of a fictitious interview and the de Havilland character’s reference to her sister as a “bitch” when in fact the term she actually used was “dragon lady”).

At the trial court, FX filed a motion to strike the complaint based on California’s anti-SLAPP statute.  The trial court denied FX’s motion.  The trial court’s ruling presented a Catch-22 for those choosing to portray real persons in creative works.  If the portrayal is done accurately and realistically (and without permission) this is grounds for a right of publicity lawsuit; if the portrayal is more creative or entirely fictitious, this could be grounds for a false light claim if the person portrayed doesn’t like the portrayal.

FX appealed to the California Court of Appeals.  In a lengthy opinion, the court reverses the trial court’s decision and dismissed de Havilland’s case.  By all means, the opinion is a clear endorsement of the First Amendment rights of television producers (and other creatives).

The First Amendment Trumps de Havilland’s Right of Publicity.

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Lindsay Lohan Loses Publicity Rights Case Over Grand Theft Auto–Lohan v. Take-Two

31 05 2018

Technology & Marketing Law Blog

March 31, 2018 · by

Lindsay Lohan is the new spokesperson for Lawyer.com, and boy is she qualified to talk about that subject! Her litigiousness should have earned her a street JD. Sadly, though, her voluminous experience with the law hasn’t adequately sharpened her legal acumen, and she racked up another loss in her litigation oeuvre.

This time, it’s her publicity rights claim against Grand Theft Auto V for the character “Lacey Jonas,” which Grand Theft Auto’s maker featured in some advertising. Two screenshots discussed by the court:

If you’re curious, you can watch a video including a scene with “Jonas” from Grand Theft Auto V. I guess the video is mostly safe for work, but it has some cusswords and lots of sexism.

 

Case citationLohan v Take-Two Interactive Software, Inc., 2018 NY Slip Op 02208, 2018 WL 1524714 (N.Y. App. Ct. March 29, 2018)

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Amicus brief filed in Lohan Grand Theft Auto V suit and some NY observations

27 02 2018

Right of publicity.com

January 25, 2018.

An appeal brought by Lindsay Lohan against Take-Two Entertainment and Rockstar Games in relation to the Lacey Jonas character in Grand Theft Auto V has inspired an amicus brief, filed last month, in support of the video game companies.   I am not commenting on the merits of Lohan’s claim here.  I also am not responding to the brief itself, but am just notating a few observations that relate to the New York discussion overall.

The Lohan case is pending in New York.  The amicus brief references New York’s right of privacy statute (New York sections 50 & 51) and indicates that New York’s statute helped the court “dodge a bullet” through its narrow right of privacy provisions.

New York’s legislation, as it shapes New York’s position on the right of publicity and its narrow provisions concerning the right of privacy, is hardly a model for right or privacy or right of publicity legislation (not that anyone has called it a model).  New York’s Sections 50 and 51 puts New York at odds with almost every state in the U.S.  It allows no room for the critical policy reasons behind right of publicity recognition, as distinct from privacy rights.  New York’s right of publicity deficiencies, stemming from the 115 year old legislation (though it has been amended a few times) are, in fact, the source of a lot of problems New York is experiencing.

Addressing New York’s 1903 statute, passed in the aftermath of Roberson v. Rochester Folding Box Co., 171 N.Y. 538 (1902), Professor J. Thomas McCarthy in The Rights of Privacy and Publicity, s.6:74 says:

“New York …is part of a tiny and dwindling minority of courts which still rejects any common law rights of privacy.

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Amicus brief filed in Lohan suit against Grand Theft Auto V

26 01 2018

An appeal brought by Lindsay Lohan against Take-Two Entertainment and Rockstar Games in relation to the Lacey Jonas character in Grand Theft Auto V has inspired an amicus brief, filed last month, by various law professors in support of the video game companies.   I am not commenting on the merits of Lohan’s claim here.  This entry is just an observation of anti-right of publicity sentiment in general, not a response or refutation to the brief itself.

The Lohan case is pending in New York.  The amicus brief references New York’s right of privacy statute (Sections 50 and 51 http://rightofpublicity.com/statutes/new-york) and suggests that this statute is somehow commendable.  This legislation, as it shapes New York’s position on the right of publicity, is sorely deficient and puts New York at odds with almost every state in the U.S.  It does New York’s citizens no favors and allows no room for the critical policy reasons behind right of publicity recognition, as distinct from privacy rights.  It is hard to imagine that New York’s antiquated position on the right of publicity, and this 115 year old statute, could be characterized as anything but the source of a lot of problems.

 

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The Risks of Using Images for Commercial Purposes

4 01 2018

Businesses were recently given a harsh reminder about the effects of failing to obtain permissions when using photography for commercial purposes when a California woman sued Chipotle earlier this year for $2.2 billion. According to the complaint in the Chipotle case, in 2006, a photographer approached the plaintiff outside of a Chipotle restaurant and asked her to sign a consent form about some photographs taken inside the restaurant. The woman refused, but in 2014 and 2015, she found a photograph of herself edited into promotional materials placed on the walls of several Chipotle restaurants in California and Florida. This case serves as a reminder that any business that uses a person’s image for commercial purposes must first obtain that person’s consent.

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adidas sued for violating Jackie Robinson’s right of publicity

3 01 2018

This lawsuit involves adidas’ alleged infringement of the right of publicity of deceased baseball player Jackie Robinson.

The plaintiff, CMG Worldwide Inc., headquartered in Indianapolis, Indiana, is the exclusive worldwide agent and representative for the estate of Jackie Robinson.

adidas allegedly, without authorization from Plaintiff, created and promoted merchandise based on the 70th anniversary of Jackie Robinson’s first appearance as a Brooklyn Dodger. The products were promoted heavily by adidas and sponsored athletes on April 15, 2017…”Jackie Robinson Day.”

Plaintiff asks for an injunction against further sales, recovery for damages suffered, disgorgment of all of adidas’ profits and attorneys’ fees and costs, so there’s a lot on the line for adidas. Stay tuned for updates.

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CMG Worldwide, Inc. v. adidas AG et al.

Court Case Number: 1:17-cv-02356-TWP-DWL
File Date: Tuesday, July 11, 2017
Complaint:

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Copyright Preemption in the Smart Phone Society: The Ninth Circuit Clouds the Picture in T3Media

3 01 2018

There is no question that smart phones have transformed the social and economic structure of society, and the integration of increasingly effective cameras has helped spark the revolution.  It is now the norm for people to document their lives through images of themselves and those around them, and to share those images through social media, where others then copy, edit, and reuse them within the blink of an eye.  Just imagine all the ways that photos are now taken, posted and virally spread via social media.  For instance, I have taken selfies, asked strangers to take pictures of me with my hiking buddies, and asked friends to send me images of people from their camera rolls. I have taken photographs of well-known personalities at private gatherings, and snapped pictures of individuals when they had no idea I was even there.   Sometimes I decide to post these personal images on Instagram or Facebook, and then away they go… Unfortunately, the Ninth Circuit failed in T3Media to fully and accurately address the limits of copyright preemption on state law claims involving the personal rights of individuals appearing in photographs.

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Italian Steve Jobs fashion company makes obvious the necessity for meaningful Right of Publicity provisions

3 01 2018

For those who argue against the need for meaningful Right of Publicity legislation, like many I have observed in the latest New York legislative effort, I offer the following situation as a compelling example that not only demonstrates the necessity of Right of Publicity recognition, but also the inadequacy of trademark law as a sufficient substitute.

An Italian company led by two brothers started a fashion company called Steve Jobs. There is no mistaken identity or alternate Steve Jobs intended by the fashion company; they openly confirm that their company is named after the late Apple-innovator Steve Jobs. Want proof? Their logo is the letter “J” with a bite taken out of it, just like Apple’s iconic trademark.

While many will already see the obvious, note that an EU trademark proceeding determined that the fashion company’s logo is (somehow) not a J with a bite out of it because (apparently) a J cannot be bitten as an apple can.

Perhaps under the guise of feigning nobility or respectfulness, the company states that they won’t make shoddy products because they “respect the name of Steve Jobs.” Of course, that respect doesn’t preclude them from including Steve Jobs’ quotes in their promotional efforts.

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Here is a link to an article with more details on the matter:

Italian Steve Jobs company v. Apple article

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Preemption question: Copyright v. Right of Publicity

22 12 2017

The Ninth Circuit Court of Appeals in Maloney v. T3 Media, Inc., Case No. 15-55630 (9th Cir. April 5, 2017), recently issued the latest installment in the age-old supposed showdown between Copyright and the Right of Publicity and the issue of preemption.  The Court states in the holding that preemption can occur “when a likeness has been captured in a copyrighted artistic visual work and the work itself is being distributed for personal use.”

To be clear, copyright does not automatically preempt the Right of Publicity.  The two doctrines protect distinct interests and, have separate policy purposes.  Preemption generally requires a very specific fact pattern.  The assumption seems to be that if the Right of Publicity co-exists in tandem with a copyright interest, preemption must be applicable.  That is not the case, and there are countless examples of uses, situations and fact patterns where various rights or interests apply simultaneously without one preempting the other.  I read Maloney as a fairly confined, and specific ruling on a distinct fact pattern.

 

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