Text of Woody Allen Complaint v American Apparel
Background here.
April 04, 2008
April 01, 2008
I Prefer His Earlier, Funnier Lawsuits
Woody Allen sues American Apparel for use of his image on a billboard (shown above) (yes, when the complaint's on Pacer I'll attempt to get a copy).
Malcolm Gladwell profile on American Apparel.
If you google 'woody allen look-alike' you will find numerous discussions of Woody Allen's pivotal role in developing the right of publicity/privacy,
March 31, 2008
Why TechCrunch Is Suing Facebook For $25 Million
TechCrunch: "Why We're Suing Facebook For $25 Million In Statutory Damages":
So we’ve been increasingly concerned about developments at Facebook over the last few months that allow advertisers to post ads using my picture and name to endorse their products without my explicit permission. I’ve received literally dozens of emails from readers asking me if I’m associated with Blockbuster’s Movie Clique application, or the new Jackass movie (no to both).
Some important context here.
January 22, 2008
ESPN Relies on CDM Fanstasy League Case To Renoegiote Licensing Fees
Sports-law Blog: ESPN Relies (in part) on CDM Fantasy League Case To Renegotiate Licensing Fees:
In today's edition of Street & Smith's SportsBusiness Journal (subscription required), John Ourand and Eric Fisher report that ESPN is renegotiating its digital rights deal with MLB Advanced Media, looking to pay a significantly lower fee after finding several pieces of the original agreement it signed in 2005 no longer cost effective ("ESPN Seeks Better MLBAM Terms").
December 28, 2007
Chuck Norris Cannot Charge His Cellphone By Rubbing It Against His Beard
Chuck Norris sues publisher of what might possibly be a humor book entitled "The Truth About Chuck Norris."
November 09, 2007
"Facebook Faces Legal Questions Over 'Facebook Ads'"
WSJ.com: "Facebook Faces Legal Questions Over 'Facebook Ads'":
"On their respective blogs . . . GWU Law professor Dan Solove and Minnesota Law professor William McGeveran have issues with the new program. McGeveran points out that this may be illegal under a 100-year-old New York privacy law. The statute says that “any person whose name, portrait, picture, or voice is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained” can sue for damages. What’s more, such a use is a criminal misdemeanor."
September 18, 2007
Jack Thompson v Take Two
I'm late to reporting about the, well, maybe vendetta is the right word, for the on-going dispute between lawyer Jack Thompson and video game publisher Take Two, which distributes Grand Theft Auto. Take Two has apparently sued Thompson in the past over 'nuisance' lawsuits, and now Thompson alleges that Take Two has modeled a character after him in the new GTA. His letter to Take Two is worth reading.
For a blast from the past, here is an amicus brief submitted in the Tony Twist case which refers to an author's right to model fictional characters on real people. One of the signers of the brief was Michael Crichton, who availed himself of this right, as described here.
September 07, 2007
This Is Only The Second Time I've Mentioned Paris Hilton
I think that shows restraint on my part. She's suing Hallmark. This was the first time, when she was still part of a sister act. I seem to have never mentioned Lindsey Lohan. Britney Spears has been mentioned many times.
August 22, 2007
Like I Knew That I Would
Guiding Rights Blog: "James Brown Heirs Win Right To Sue Over Singer's Image"
August 21, 2007
Michael Vick Chew Toy: Discuss
Let's assume someone wants to sell a Michael Vick chew toy."
Discuss the rights of the parties.
UPDATE: My Moses & Singer colleague, Mitch Bernstein, licensing/branding expert to the stars, writes:
"While I think a Michael Vick chew toy might be a clever exploitation of Vick's predicament, I don't think the circumstances and satire involved will overcome the Right of Priovacy/Publicity laws of many states. Last I heard, there was no exception for confessed felons (though Mr. Vick may have difficulty obtaining the sympathy of almost any judge hearing such a case). Arguably, if the face was more of a caricature and iof his whole name was not used on or in conjunction with selling the toy. there would be more breathing room for sellers."
July 20, 2007
Bon Jovi v Mijovi
WSJ Law Blog: "Rocker Threatens To Sue":
"Jon Bon Jovi — born John Bongiovi – has sent a cease-and-desist letter to beverage maker Mijovi. The New Jersey rocker apparently saw a Mijovi drink at a Red Bank cafe and thought it was too similar to his own name. He then enlisted his lawyer Peter Laird to fire off a missive to the company. We haven’t seen a copy, but we hope it opened with, “You give coffee-based energy drinks a bad name!”"
July 12, 2007
Buck Naked Could Not Be Reached For Comment
WSJ.COM: "Adult-Film Names 101: Stay Away From Real Ones"
One of several porn star name generators.
July 10, 2007
Right Of Publicity For Athletes
Brian Socolow: "Protecting Your Brand - You!" (Article from OverTime Magazine discusses the right of publicity, especially with regard to athletes and endorsement and licensing deals, and stresses the need for athletes to monitor the authorized and unauthorized uses of their name and likeness.)
June 19, 2007
Are Britney's Lawyers Crazy (Like Foxes)?
A Florida radio station ran billboards (pictured above) showing Britney Spears and one of the station's DJs, suggesting that she and DJ were 'nuts.' Ms. Spears contested the use. The radio station is pulling the billboards. Unfortunately, the Smoking Gun has printed only one of Britney's lawyers letters, not the one that contains 'many legal authorities.' However this letter does site Florida statutes and law. Interestingly, the two cases cited do not apply to media defendants.
There is some precedent for media defendants to utilize someone's name or likeness if the person was the subject of the media's product. In Velez v. VV Pub. Corp., the Village Voice used an unflattering photo of local politico Ramon Velez (a subject of Voice exposes), in an advertisement for the Voice. The use of the photo fairly represented the Voice's news coverage. 135 A.D.2d 47, 50, 524 N.Y.S.2d 186, 187 (1st Dept. 1988) ("[T]he incidental use in an advertisement by a news disseminator of a person's name or identity does not violate the statutory proscription, if it had previously published the item exhibited as a matter of public interest."
In Montana v San Jose Mercury News, the newspaper sold posters of Joe Montana following a Super Bowl victory, which posters were held to have news value due to their 'relatively contemporaneous' publication. Because the use was in connection with merchandise rather than a mere advertisement for the newspaper, this ruling seems like a bit of an outlier. 34 Cal.App.4th 790 (1995).
See more discussion by Stanford University Library here.
If you're aware of Florida caselaw that would suggest how a media defendant using a name or likeness in advertisement for its services might fare, send it on in.
May 03, 2007
A Post-Mortem Right Cannot Be Created After Death
Sounds funny to say it that way but it makes sense, especially after you read this decision holding that the purported owners of the Marilyn Monroe persona, cannot enforce their rights in New York, because a post-mortem right of publicity did not exist at the time of Marilyn Monroe's death, and the testator can only devise that which exists at the time of death.
Best title by WSJ's law blog: "Goodbye Norma Jean (And to Your Right of Publicity)"
March 07, 2007
Not Necessarily Stoned, But Infringing
NME: 'Hendrx Family Sues Vodka Brand":
"The family of Jimi Hendrix have filed a lawsuit over the use of his name in association with a brand of vodka.
Seattle businessman Craig Dieffenbach is marketing the brand, called Hendrix Electric Vodka, which is packaged in a purple bottle and features Jimi Hendrix' face and signature.
Dieffenbach is defending his right to use the likeness, as a 2005 court ruling decided that the Experience Hendrix owns the right just to his music, and not his name and image. "
I looked at the PTO registry and there seem to be a boatload of registrations and applications for the JIMI HENDRIX signature in the name of Experience Hendrix. However there is a cryptic reference in Wikipedia that Al Hendrix, Jimi's father, donated Jimi's 'likeness' to the James Hendrix Foundation, not to Experience Hendrix. A right of publicity can be a descendable asset. So there may be some confusion. If you're aware of the 2005 court ruling referred to, send it on in.
True story: I was playing 'Bold as Love' in my office when my legal assistant comes in and says 'oh, someone did a cover of the John Mayer song?'
BUT TO BE FAIR: I don't really know how Emo punk is different from regular punk.
February 12, 2007
Not The Story Of My Life, Part Two
December 13, 2006
Evel Knievel Sues Kanye West And AOL Over 'Evel Kanyevel"
TheSmokingGun provides a copy of the complaint filed by Evel Knievel in the Middle District of Florida, alleging that musician Kanye West infringed Mr. Knievel's rights in his name, likeness and jumpsuit (I'm serious about the jumpsuit), by portraying a character named EVEL KANYEVEL who attempts to leap a canyon in a rocket, in his music video for the song 'Touch The Sky" (above).
Interestingly, AOL is a named defendant, apparently because it returns the video as a search result for a search for EVEL KNIEVEL.
December 07, 2006
Tom Brady Sues Yahoo! Over Use Of Image
Tom Brady has sued Yahoo! over its use of his image (center, above) to promote Yahoo! Fantasy Football (a game which utilizes real players stats - see yesterday's post re use of sports statistics). Copy of Brady v Yahoo complaint here via The Smoking Gun.
December 06, 2006
Who Owns Baseball Statistics?
Glenn Mitchell, head of litigation here, has written, Take Me Out [of] the Ball Game? U.S. District Court Rejects Proprietary Rights in Player Names and Statistics" regarding C.B.C. Distribution v. MLB, a recent decision on who owns baseball statistics, published in the November-December issue of INTA's The Trademark Reporter.
December 05, 2006
"CASSIUS CLAY, Appropriation, Sport, Free Speech and the Law"
Good fact pattern for law professors. Tough fact pattern for lawyers.
Murketing: "Cassius Clay, Appropriation, Sport, Free Speech and the Law." An artist saw a 1965 photo of Muhammed Ali, then named Cassius Clay, wearing a t-shirt emblazoned with his own CASSIUS CLAY logo (logo depicted above). The artist discusses his creation of shirts today with the logo, and his own research into the cases distinguishing between trademark use and free speech, such as the Tiger Woods and Three Stooges cases. HT 43(B)log.
Among all the issues raised in the article, I'll merely note in passing that treating 250 skate boards as a platform for First Amendment speech is problematic for IP rights holders.
Background: Muhammad Ali Sells 80% of His Name
November 28, 2006
Evidence Of Secondary Meaning In TV Catchphrases?
I confess that I have used the expression "Whachoo talkin' about Willis?" without ever having seen a single episode of "Diff'rent Strokes" (nor have I ever spelled 'different' as 'diff'rent') but I am aware where the phrase comes from.
Noted authority TV Land, is coming out with a special "The 100 Top TV Catchphrases." Purists will be annoyed that they have combined lines from comercials ("I Can't Believe I Ate The Whole Thing"), political expressions ("Read My Lips"), one time memorable lines ("I Don't Like Spunk") and what I would regard as true catchphrases, repeated phrases ("Aaay" or "D'oh!").
Ironists will note that Hank Kingsley's "Hey Now!" is on the list, as it is a parody of a catchphrase.
Moralists will note that two catchphrases on the list end in 'Bitch!', including Dave Chapelles' 'I'm Rick James, Bitch!", which, coincidentally, is how our firm signs its demand letters.
At least one phrase is the subject of an IP case, 'Here's Johnny!' Carson v. Here's Johnny Portable Toilets, Inc., 698 F.2d 831 (6th Cir. 1983), which went off on rights of publicity. I'm sure there are more cases - please email me.
The question arises - if a catchphrase enters the lexicon, does that diminish or enhance its protectability? Does 'Where's The Beef?" signify Wendy's, or Walter Mondale, or does it have it's own significance at this point?
Note the trilogy above: does Homer's parody refer to Johnny Carson, or to Jack Nicholson, or to both?
Here's Johnny by Stephen Cox available here.
Here's Johnny by Ed McMahon available here.
October 09, 2006
Rosa Parks As Licensing Property
NY Times article on Rosa Parks, and the marketing of her persona by CMG.
September 07, 2006
Taking O.J.'s Name
Fred Goldman has an unsatisfied $25.5 million judgment against O.J. Simpson arising from a wrongful death judgment relating to the murder of his son, Ron Goldman. Simpson has never paid any of the judgment.
Now Goldman is moving to take Simpson's 'publicity rights' in his name. Publicity rights are alienable (note Muhammad Ali's recent transaction) and descendable. Simpson apparently is still able to make some money signing autographs and there is still some value in his publicity right. Simpson's attorney is quoted as stating that there is no precedent for a 'seizure' of publicity rights.
May 23, 2006
Call For Submissions Re Baseball Statistics Case
Let's have a blogging symposium re the Fantasy Baseball case. It's got everything: Intellectual Property, statistics, and Baseball.
May 12, 2006
Effectively Ending My Career With The Coasters
Via Nerdlaw, the Truth in Music Advertising Act, a law in several states barring performance using a name of a band if the performer was not a member of the original 'recording group.'
April 11, 2006
Muhammad Ali Sells 80% Of Name For $6.8 Mil Per Letter
Muhammad Ail sells 80% of his name (which would be either MUHAMMAD A or HAMMAD ALI, depending where you started) for $50 million up front plus, to CKX, a licensing firm. Terms of deal here.
It can be argued that Muhammad Ali is the most famous person in the world but how would you measure that? Unaided awareness? Here's a methodological problem - Who is the Pope? Who is Benedict XVI? and Who is Joseph Ratiznger? will produce different results (as will Who is the President of the U.S.? and Who Is George Bush?).
Maybe 'Who Has The Most Recognized Face' has a different answer than 'Who Has The Most Recognized Name.'
March 27, 2006
Right of Publicity Of One's Van
March 21, 2006
HRH Prince Charles v. Associated Newspapers
From the Bird & Bird case bulletin on HRH Prince of Wales v. Associated Newspapers: "The decision on Friday in HRH Prince of Wales v Associated Newspapers examined the balancing act between protecting a public person's private life and press freedom. It reviewed the extent to which confidential information and copyright works can be protected in such circumstances."
UPDATE: Prof. Patry commentary here.
March 16, 2006
Disclosure: George Clooney Did Not Write This Post
Nor, apparently, did he write the blog discussed here.
March 07, 2006
I Will Not Post Another Photo Of Jessica Alba Here
. . . even though it's germane. Playboy has refused to pull its March issue featuring Ms. Alba on the cover (background here). As to Ms. Alba's argument that the appearance on the cover of Playboy suggests (promises? implies? teases?) that the subject will appear nude or semi-nude (why isn't it demi-nude?) inside the magazine, Playboy has asserted that 'celebrities routinely grace the cover without appearing nude inside.'
This seems like a testable proposition if we could define celebrity. But is the prior track record of celebrity covers known to, and does it matter to an optimistic readership?
March 03, 2006
Alba v. Playboy: Cover Expectations
Jessica Alba refused to pose for Playboy's cover. Playboy obtained a photo from the studio for Alba's latest movie and ran that.
From the letter to Playboy from Lavely & Singer (Alba's attorneys) (via The Smoking Gun):
". . . Playboy has established a known custom and practice (and an expectation with and among the public) that any woman whose photograph is featured on the cover appears in a nude or semi-nude pictorial in that month's issue. In featuring Ms. Alba's photograph on the cover of Playboy's March Issue, it is clear that Playboy's intent was to create a false belief and/or expectation among the public that Ms. Alba voluntarily appeared in the nude or semi-nude and that a revealing pictorial of her is contained in Playboy's March Issue . . ."
There is also an unauthorized Playboy bunny on Ms. Alba's breast.
February 10, 2006
Name, Likeness and Truthiness
Steven Colbert either coined the term TRUTHINESS or is most responsible for its popularization. He introduced it as his 'word of the day' in the first episode of his show THE COLBERT REPORT in October and the concept of 'feeling the truth' caught on. By the end of the year, the American Linguists Society, which defined the word as:
'the quality of preferring concepts or facts one wishes to be true, rather than concepts or facts known to be true,'
to be the Word of the Year.
According to the latest polls, 44% of Americans don't get this joke yet.
While Colbert has received general attribution for popularizing the term, when the AP didn't, Colbert took them to task, announcing them to be the greatest threat to America, displacing bears from that position.
The commercialization has begun. TRUTHINESS t-shirts are available on Cafe Press. The domain name TRUTHINESS.COM has been registered. However, there's nothing on TESS yet.
Colbert is right to protect his claim. For now, he has a plausible argument that the term is part of his 'persona', in the way in which HERE'S JOHNNY was a protectable part of Johnny Carson's persona. And he should file an application.
January 20, 2006
A Suspiciously Waitsian Voice
Prof Patry on Tom Waits on those who mimic Waits for profit.
Trivia: Which Tom Waits song contains the lyric: "Change your life, change into a 9 year old Hindu boy"?
Answer here.
January 16, 2006
Google, MLK Likeness and 'I Have A Dream' Copyright
January 11, 2006
Eschaton and Intent To Annoy
Atrios is the pseudonym for a blogger who writes for the popular Eschaton blog. Three times today he posted critical comments of Arlen Specter and ended all of them by providing Specter's contact info and the exhortation that his readers call Specter and ask him provocative questions.
If many people called Specter and ask him provocative questions, Specter may well be annoyed.
Does Specter have a cause under the new Intent to Annoy law (that he had a hand in drafting)? Can he force Atrios to testify as to his 'intent'?
Atrios provides a link to what he says is his real name. Is that a complete defense? Does Atrios have to forego anomynity because of this law?
More on Intent to Annoy here from Professor Volokh, (emphasizing that for purposes of anti-stalking laws, one-to-one communications such as phone and emial, are qualitatively different from one-to-many communications, such as websites.
December 23, 2005
Celebrity Endorsement As Theatre
Must-read: Peyton Manning: The Man And The Brand, via This Blog . . . Hat tip to the less famous Froomkin.
October 25, 2005
Sixth Circuit: Right of Publicity / Attorneys Fees Decision
Sixth Circuit discussion of, inter alia, award of attorneys fees under the Lanham Act. Discussion of case by Silicon Valley Media Law Blog here.
Andretti v. Borla Performance Industries, civ 04-1835 (6th Circuit, October 21, 2005).