Free for a Fee

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.

more

The content in this post was found at http://www.ipwatchdog.com/2017/07/18/copyright-preemption-smart-phone-society-t3media/id=85807/ and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.

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.

more

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

Italian Steve Jobs company v. Apple article

The content in this post was found at http://rightofpublicity.com/italian-steve-jobs-fashion-company-makes-obvious-the-necessity-for-meaningful-right-of-publicity-provisions and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.

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.

more

The content in this post was found at http://rightofpublicity.com/preemption-question-copyright-v-right-of-publicity and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.

This is a putative class action lawsuit against Take-Two, the video game publisher. Plaintiffs allege that the “MyPlayer” feature on NBA 2K15 violated Illinois’ biometric information privacy statute. The feature allowed players to upload a face-scan and then use a version of that scan as their avatar in certain multiplayer games. Specifically, plaintiffs allege that Take-Two (1) failed to obtain consent; (2) disseminated biometric data without consent; (3) failed to provide details regarding the purpose or term of storage or use of the information, or an applicable retention schedule; and (4) failed to comply with appropriate security measures by transmitting the scans via standard wireless connections.

The district court dismissed on Article III standing grounds. The Second Circuit affirms.

Case citation: Santana v. Take-Two Interactive Software, Inc., 2017 WL 5592589 (2d Cir. No. 21, 2018)

more

Related posts:

The content in this post was found at http://blog.ericgoldman.org/archives/2017/11/privacy-plaintiffs-lack-standing-against-nba-2k15s-face-scanning-technology.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.

more

The content in this post was found at https://arstechnica.com/tech-policy/2017/09/mugshot-website-must-face-class-action-for-charging-to-remove-photos/ and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.

Two informative articles have issued in the last week, on the heels of the 2017 Licensing Show.  Both are informative and include input from industry leaders.

Forbes:   Forbes Business of Deceased Icons

and Huffington Post:  http://www.huffingtonpost.com/entry/592fa717e4b00afe556b0b27

Delebrities

more

The content in this post was found at http://rightofpublicity.com/two-articles-on-the-business-of-right-of-publicity and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.

DAVE GILSON FEB. 13, 2017

Mother Jones

No one has entered the White House with a greater sense of self-worth than Donald Trump. The president considers his personal brand to be one of his biggest assets—valued at $3.3 billion, in his own estimation. (Forbes, which has spent yearsreporting how Trump inflates his net worth, says the actual value is intangible.) Trump and his companies have registered hundreds of trademarks with his name in them, from The Donald to The Trump Follies. Never in American history has there been a president more concerned with controlling his image, not simply as a matter of personal pride, but as a matter of preserving his bottom line.

more

The content in this post was found at http://www.motherjones.com/politics/2017/02/trump-name-publicity-rights and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.

Publicity right laws often prohibit the use of third parties’ names (or other aspects of their personalities) “for commercial purposes.” So what’s a “commercial purpose”? Fuck if I know. We might make the term coextensive with the Constitutional law definition of “commercial speech,” but that provides precisely zero help because there are multiple inconsistent definitions of that term too. Because no one really knows the commerciality borders for publicity rights (or any other) laws, defendants sometimes struggle to get quick courtroom wins in publicity rights cases, even when they publish obviously editorial content.

Against this backdrop, Avvo scored a nifty early victory in a case challenging its attorney profiles. Avvo creates the profiles without consent from the profiled attorneys, and then displays advertising on the profiles and uses them to upsell Avvo memberships.

Case citation: Vrdolyak v. Avvo, Inc., No. 1:16-cv-02833 (N.D. Ill. Sept. 12, 2016). The initial complaint (Bernstein v. Avvo).

more

The content in this post was found at http://blog.ericgoldman.org/archives/2016/09/avvos-attorney-profile-pages-dont-violate-publicity-rights-vrdolyak-v-avvo.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.

S.E. has Down Syndrome. The complaint alleges that in 2008, S.E. attended a baseball game (at the age of 8) in Nashville and was photographed standing outside the stadium near a concession stand. The photographer posted the photo to his Twitter account with the caption “everything that’s wrong with America.” The photo became a meme. In 2014, it was posted to CBS News’ website. A few years later (in 2016), Valentin Chmerkovisky (the “Dancing with the Stars” pro) posted the meme to his Facebook page with the following caption:

Letting your kid become obese should be considered child abuse.

The photo has been viewed by many of Chmerkovskiy’s “quarter million” followers on Facebook. Chmerkovskiy later posted the following statement:

I’m truly sorry for the lack of sensitivity . . . but one some level I have to agree . . . You’re handicapping your kid, and they’re defenseless. They don’t know better, that’s why you’re there . . . anyway I’m just a childless preacher, but here’s some food for thought. #nopunintended.

While unclear, it appears he posted this statement after S.E.’s mom complained to him and asked him to take down the photo.

Case citation: SE v. Chmerkovskiy, 2016 US Dist LEXIS 159471 (M.D. Tenn. Nov. 17, 2016)

more

The content in this post was found at http://blog.ericgoldman.org/archives/2016/11/adding-derogatory-caption-to-photo-meme-can-be-false-light-s-e-v-chmerkovskiy.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.

Knutsson was a technology reporter and creator of the “CyberGuy” persona. He worked for TV station KTLA between 1996 and 2011. In 2005, he entered into an agreement with KTLA to be paid an annual salary of $325,000 a year plus annual increases. [Note to self: try to find side gig as a tech television reporter.]

The agreement gave KTLA ownership over Knutsson’s work and gave KTLA the “unlimited right . . . to exploit the programs, recordings or any portions thereof” in any manner and by any method and in all media. The agreement broadly allowed KTLA to use CyberGuy’s content

in all forms of reproduction, transmission, exhibition, display, and presentation, including television, theaters, . . . libraries, devices marketed for the home . . . books, periodicals, wireless, internet uses and all other types of exploitation now existing or hereafter devised.

The agreement allowed KTLA to edit, rearrange, and otherwise modify the work. It also allowed KTLA to license CyberGuy material up- and down-stream to other stations owned by KTLA’s parent entities. A provision in the agreement said the content would be distributed under the “CyberGuy” brand. It allowed Knutsson to distribute the materials in two particular cities with the caveat that, if KTLA’s parent acquired a station in either city, the parent would have the exclusive right to air the material in the particular market.

The agreement contained two restrictions. First, it said that KTLA could not use Knutsson’s name and likeness as an endorsement. Second, it said that nothing in the agreement gave KTLA “ownership in the CyberGuy designation used by [Knutsson].”

KTLA severed its relationship several years into the last renewal and employed a new tech reporter. After the termination, the CyberGuy material continued to be published on the KTLA sites and sites for KTLA’s affiliated entities. Knutsson’s lawyer sent a cease and desist letter, and Tribune undertook steps to remove some (but not all) links to Knutsson’s content. Apparently, the links to content were removed from the main site but not from permalinks. Knutsson filed suit, alleging among other things, violation of his publicity rights. (He also asserted employment claims, but those were not a part of this appeal). The trial court denied defendants’ request to dismiss the publicity rights claims. On a request for a writ of mandate, the appeals court grants relief to the defendants and directs the trial court to dismiss the claims.

more

Citation: Local TV, LLC v. Superior Court, B271883 (Ca. Ct. App. Sept 2, 2016) [pdf]

The content in this post was found at http://blog.ericgoldman.org/archives/2016/09/kurt-the-cyberguy-loses-publicity-rights-claims-against-tv-station-cyberguy-v-ktla.htm and was not authored by the moderators of freeforafee.com. Clicking the title link will take you to the source of the post.