NY Court Of Appeals: Modern Beach-Going Young Woman Not Identifiable As Lindsay Lohan

Lohan v Take-Two Interactive:

Lindsay Lohan’s New York right of publicity suit against the publishers of Grand Theft Auto, arising from use of avatar Lohan asserted was a ‘portrait’ of her, dismissed by NY Court of Appeals:

“.. . we conclude that the amended complaint was properly dismissed because the
artistic renderings are indistinct, satirical representations of the style, look, and persona of
a modern, beach-going young woman that are not reasonably identifiable as plaintiff . . .”

lower court decision here.


DJ Action: FAZE CLAN v FAZE Apparel in CD Cal

DJ Action re use of FAZE CLAN by FAZE CLAN video game organization against apparel manufacturer. It seems that there are leagues for video games, and ‘clans’ compete, and there are standings, and everything.


Text of NFL Right of Publicity Lawsuit, Garcon v. FanDuel



NFL player sues fantasy football provider FanDuel on Rights of Publicity, false association, unjust enrichment.  Competitor DraftKings, which is the target of a different type of class action along with FanDuel, has a deal with NFLPA.

FanDuel does have a deal with hometown team, the Ravens.   FanDuel has apparently previously had deals with individual players, including plaintiff, Pierre Garcon.

Text of complaint: Garcon-FanDuel-lawsuit-1


Join Us To Celebrate The San Francisco 49er’s Lawsuit ($10 cover, 2 drink minimum)

49ers logo

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.

49ers v motif.pdf

49er exhibits.pdf


CMG v Estate of Marilyn Monroe

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.

Cmg v Estate of Monroe


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.

Complaint Situation


War v Pepsi (Why Can't We Be Friends?)

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.


Marilyn Monroe's Ghost Spotted Drafting Legislation In Albany, New York?

marilyn monroe ghost.jpg
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.


Decision in Jim Brown v EA Re Use of Persona (CD Cal)

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


Boxers Sue EA Over Use of Persona

Boxers sue Electronic Arts over use of persona. Background here.
Complaint Figheters v Ea