This is interesting for a bunch of reasons. The San Francisco Forty-Niners sue a nightclub near its stadium, that promotes events that refer to the Niners or its players. See Exhibits Q, R and S in the second document below for ads the club distributes to promote, for example, birthday parties ‘in honor of’ specific Niner players, with photos of the player wearing his Niner uniform. Of particular interest is the Niners’ invocation of its unusual 3-D trademark registrations in its uniforms (see Exhibit J through M).
One fact that isn’t clear (to me) from the pleading is whether the nightclub had the consent of the player whose birthday it was allegedly celebrating. And its not clear if the players showed up for their party.
There was a recent case that stands for the proposition that you can’t end-run a false endorsement cause by claiming that you were exercising your First Amendment rights by ‘foisting’ some kinds words on the celebrity (Michael Jordan prevailed against a drugstore that ‘congratulated’ him on being inducted into the Hall of Fame (in a full-page ad that featured all sort of MJ indicia)). So if the players didn’t authorize, there may be an action there as well.
p.s. There’s also a straight-forward copyright claim, as the nightclub appears to have used Niner photographs without authorization.
CMG and Estate of Marilyn Monroe continue their dispute over the rights to her rights of publicity, to the extent they exist.
Background here. Two comments about the complaint. There’s a typo in paragraph 21, and if CMG had to list 8 famous celebrities it represents, I’m surprised Tommy John makes the list.
By The Way, It's The Devotion of Resources To This Sort Of Thing That Erodes Our Nation's Competitiveness
Let me just channel the voice of an old cranky person first: the reason why the fact that Mike “The Situation” Sorrentino is a wealthy person is a bad thing, is that it sends the message to young people that you don’t actually have to work hard at math or science or some other useful field, to be successful. You merely have to be fabulous.
OK, I got that out of my system. So back in August, Abercrombie & Fitch, as part of an (alleged) publicity stunt, announced that it would pay The Situation to NOT wear its clothes. It also offered shirts such as that above, referring to “The Fitchuation.”
The Situation is now suing, alleging false endorsement (and alleging that Abercrombie never actually contacted him regarding its ‘offer.’ This has the makings of a pretty interesting fact pattern. A defendant has a free speech right to comment on the plaintiff and a right to parody plaintiff. Also, there also is an explicit statement by defendant that it doesn’t want plaintiff to endorse it. However, there is an interesting ‘meta’ aspect to this in that in view of the novelty of the public statement, and in view of the “Fitchuation” merchandise, that a certain segment of the public might believe the exact opposite: namely that The Situation is in on the joke.
My friend Tom writes:
Pepsi is running an ad with War’s “Why can’t we be friends?” War is suing them for 10M saying Pepsi didn’t secure the rights. If you were going to steal a song, why would you steal from a group called War?
Excellent point Tom, and love to Andi. Although some articles have described the lawsuit as a copyright suit, the complaint doesn’t mention copyright but sounds in breach of contract, right of publicity and trademark.
When using an ‘original’ recording for a commercial, one needs authorization from the owner of the copyright of the composition and of the recording. It would seem to be the case that the plaintiffs here are neither. So Pepsi may well have ‘cleared the rights’ to the song, we don’t know.
However, what’s the breach of contract action about? Plaintiffs allege that collective bargaining agreements with performing artists unions SAG and AFTRA obligate the filmmaker to contract with the recording artists, apart from copyright considerations. Without speaking directly to Pepsi’s situation, if a filmmaker uses a ‘sound-alike’ recording, then that would appear to remove the need to (1) obtain authorization from the owner of the copyright in the ‘original’ performance; and (2) seem to resolve the SAF/AFTRA issue. Of course, if Pepsi used the original, then there may be SAG/AFTRA issue. This isn’t my specialty – if it’s yours, please leave a comment.
As to rights of publicity, it strikes me as odd for a group of people to assert a right of publicity. Don’t you have to be a person to have a persona? Trademark law would seem to be the proper avenue for groups to bring false endorsement claims.
There have been right of publicity/trademark cases arguing that a ‘soundalike’ recording implies endorsement by the original artist. There is similarity here to the Romantics v Activision case, which is thoroughly discussed, along with the Tom Waits and Bette Midler cases, by Prof. Tushnet here.
Dead celebrities have lobbied NY state senators to introduce S06790, a bill to amend NY civil rights law to add a 70 year post-mortem right to prevent the use of the persona of a deceased personality. The ghost of Marilyn Monroe may have been among the lobbyists, because Section 12 of the bill seems to reverse the outcome of this case, that held that Marilyn Monroe’s estate, and CMG, the estate’s agent, couldn’t enforce post-mortem rights in NY, if we ever got them, because you cannot devise what doesn’t exist when the will is written.
Drawing of Marilyn Monroe ghost from here.
Jim Brown sued EA, publisher of Madden Football video game, re use of avatar that resembled Brown. Image was used in game but not in promotional material for game. Judge dismisses case on First Amendment grounds. Background on on-going disputes between atheltes and EA here. You can use TIGER WOODS and TONY TWIST as search terms on the Trademark Blog search tool to the right, to learn more on the general subject of use of athletes’ images.
Jim Brown Decision
From Twitter’s blog:
With due respect to the man and his notable work, Mr. La Russa’s lawsuit was an unnecessary waste of judicial resources bordering on frivolous. Twitter’s Terms of Service are fair and we believe will be upheld in a court that will ultimately dismiss Mr. La Russa’s lawsuit.
Text of Complaint in Yahoo v NFL Players, Decision in CBS Interactive v NFL Players, re Fantasy Stats
Yahoo has sued the NFL Players Union re the use of statistics in fanstasy football games, after Minnesota District Court rules in favor of CBS Interactive in similar suit. CBS decision and Yahoo complaint reproduced below.
Decision Cbs v Nfl