ReallyEvilCanine alerts us to the news that the game Plants vs. Zombies has decided to change its dancing zombie, because Michael Jackson's estate complained that the zombie looked too much like Jackson. It's true. The zombie is obviously designed to look like Michael Jackson, and my guess (details are lacking) is that the estate threatened a publicity rights claim over the use:
This seems pretty silly. Publicity rights rules were put in place to try to stop people from thinking a famous person had endorsed a product. I can't see how anyone could have possibly thought that Michael Jackson or the Jackson estate had endorsed this particular game, or the dancing zombie Jackson.
Oh boy! Where to start on this one. Normally, when you have a commercial on TV, you would like it to go viral so more people see it. We've certainly seen some companies use this to their advantage. But what if the actors in those commercials don't want it to go viral? What if they happen to be (or hope to be) upstanding professionals, and the commercial involves them participating in frat-boyish fun, such as playing beer pong, which they hoped would only be seen in a tiny country on the other side of the globe? Well, that seems to be exactly what happened to a pair of unfortunate (but quite talented) beer pong players, who have now sued the producers of "The World's Funniest Commercials," TBS and Carlsberg beer.
You see, Scott Tipton and Christopher Kolb are really good at beer pong. So good, that Carlsberg hired them (and a few others) to perform in this commercial:
However, one of the guys was in law school at the time, and didn't want his future career prospects diminished by his beer pong prowess. Why? Because, as the complaint explains, "the plaintiffs' difficult trick-shots indicate substantial experience playing Beer-Pong, i.e., substantial experience drinking substantial quantities of beer -- a less than desirable image...." (emphasis in the original). He also did not want his (apparently beer pong ignorant) parents and grandparents to know of his amazing skills at the "most remarkable trick-shot, ricocheting the ping-pong ball four times off of uneven, angled surfaces, and into the beer cup with back-spin, after which both Tipton and Kolb celebrate exuberantly" (emphasis in the original). Because of this, he made sure that the agreement had geographic restrictions, such that it only showed in Denmark. The other guy was an actor, who claims he agreed to a "below standard" rate, knowing that the commercial was only for the Danish market.
But, of course, the video got some attention, and the producers of The World's Funniest Commercials decided to include it in their show (with Carlsberg's blessing) which aired in the US on TBS. Even worse, the producers used a clip from the commercial in their own commercial for the show. The guys then try to make the case that the TBS promo was the key reason why people watched the show, and their clip in the promo was the key part, and thus, they deserve 50% of all of TBS's advertising from the show. Good luck with that.
The lawsuit itself involves California's popular publicity rights law (that we've been talking about a lot lately) as well as a variety of other claims. However, in an age when we're already pointing out that geographic restrictions are obsolete, does it seem even remotely reasonable that the commercial would never be seen outside of Denmark?
And yes, the legal complaint makes sure to explain just what beer pong is, in case the court is unfamiliar with the... um... sport:
And here we are, once again, discussing California publicity rights in a lawsuit that seems so ridiculous it just leaves you shaking your head. It involves Mike Love, of the Beach Boys, who apparently got quite upset that former Beach Boy Brian Wilson released an album in the UK a few years back. Wilson released the album in the UK, like others have, by doing a deal with the UK newspaper The Mail, which distributed copies of the album to all its subscribers in the UK and Ireland. Apparently 425 copies of the paper were distributed in the US... but none with the CD. 18 copies of the paper (again, without the CD) were distributed in California.
Mike Love (who I believe is Wilson's cousin) holds the trademark on The Beach Boys for use when touring, got upset when he saw that the album cover of Wilson's album distributed via the newspaper included some small photographs of the old Beach Boys, including some that had Love. And at this point, Love and his lawyers filed lawsuits against everyone for just about anything the could think of:
In
response to the English promotion, Love sued a variety of
parties for their involvement in the promotion campaign. He
sued Wilson; Associated Newspapers Limited ("ANL"), the
publisher of Mail on Sunday; BigTime.tv, a British company
that licensed and recorded the compact disc; Sanctuary
Records Group, Ltd., the entity that owned the rights to the
Brian Wilson recordings relevant to this case, as well as Sanctuary
Records Group NY, Sanctuary Music Management,
Inc., and Sanctuary Music Productions, Inc. ("the Sanctuary
defendants"); Jean Sievers, the Lippin Group, Inc., and SOOP
LCC, Wilson's managers and publicist; David Leaf, a writer
and producer for Wilson; and Melinda Wilson, Wilson's wife.
Through a variety of steps, most of these defendants and claims were dismissed, sometimes "with prejudice" which resulted in attorneys' fees being awarded as well -- after the district court determined that the copyright claims "bordered on frivolous and were not
objectively reasonable" and that they "contributed to the
bloat" of a "vastly overpled . . . case." On top of that, Love made some... um... mistakes (some might call them "lies"), such as first claiming he lived in Nevada, and then after realizing he was trying to use California publicity rights laws, changed the filing to claim that he had "a residence in California." In doing so, the court "strongly admonished" him for falsely claiming that he was a California resident when he had admitted he really was not.
Then there's my favorite bit, where he found a guy to swear that he bought the Wilson album on eBay after mistaking it for being a Beach Boys offering. The only problem? The guy who made that declaration was a friend of Love's lawyer, and the evidence suggested he wasn't actually confused:
Love responded to criticism by the district court that he had
failed to introduce any evidence that Good Vibrations had
ever entered the U.S. market by filing a declaration by Steven
Surrey that Surrey had bought a copy of Good Vibrations on
eBay because he thought it was an official Beach Boys product
("Surrey affidavit"). Because of uncontested evidence that
Surrey was a close associate of Love's attorney and had fabricated
his allegation that he was confused by the labeling of
Good Vibrations, the district court never considered the Surrey
affidavit to have any evidentiary value, and entered sanctions
against Love's counsel.
Rather than thinking that it made sense to perhaps give up this path of protest, Love appealed certain aspects of the district court's ruling, and an appeals court has now smacked Love down again. The key point: Love is bringing "publicity rights" charges based on California's publicity rights laws -- and yet, everything about the release of this album was in the UK, which has no corresponding publicity rights.
Although California recognizes both a statutory and
common law right of publicity, and England recognizes neither,
this is not a case of true conflict... California
has no interest in applying its law to the conduct in question.
None of the parties remaining in this suit is a citizen of
California. The misappropriation in this suit occurred almost
exclusively in the United Kingdom and Ireland, where millions of copies of the Mail on Sunday and Good Vibrations
were distributed.... At most, de minimus
conduct occurred in California when a handful of copies of
the paper were delivered without the CD, and a handful of
copies of Good Vibrations were sent to Wilson's attorney in
California.
The court points out that if this whole thing was legal in the UK, there's not much for Love to complain about:
Even if California has an interest in protecting the right
of an entertainer with economic ties to the state to exploit his
image overseas, that interest is not nearly as significant as
England's interest in (not) regulating the distribution of millions
of copies of a newspaper and millions of compact discs
by a British paper primarily in the United Kingdom
The court also similarly dismisses various trademark claims that Love makes, again pointing out that the UK is not the US. With the court pointing out that there doesn't appear to be any actual harm in the US, Love tried to claim that his US tour of the Beach Boys had lower than expected ticket sales. The court doesn't find this to be credible evidence of any harm, seeing as US tour results were unlikely to be impacted by a CD released solely in the UK:
Love' declaration--that
his ticket sales in the United States were lower after the distribution
of Good Vibrations, the release of Smile, and the U.S.
tour embarked upon by Wilson--is insufficient. Even if, as
Love argues, European purchasers of the Mail of Sunday
would mistakenly associate the promotional CD with Love,
Smile, and the official Beach Boys touring band, it is too great
of a stretch to ask us, or a jury, to believe that such confusion
overseas resulted in the decreased ticket sales in the United
States.
The appeals court also affirms the lower court's rulings awarding attorney's fees to some of the parties Love sued. Love, amusingly, tried to argue that even though California's publicity rights laws allows for attorney's fees to be awarded, since the court found that law inapplicable due to jurisdiction, that the attorney's fee provision didn't apply either. The court brushed that argument aside, pointing out that it was Love himself who brought the action under that law.
All in all, Love seems to have lost badly (now, multiple times) and has to pay attorneys' fees to some of the parties he sued. Reading the descriptions in the ruling suggest that this lawsuit was about as disastrous for Love as could be.
We've talked a few times recently about continued attempts to broaden the rather questionable concept of "publicity rights." The original idea behind publicity rights were to stop a company from using a famous person's name or likeness without permission in a way to suggest they endorsed the product. I can understand why that would seem desirable, but it opens up so many questionable unintended consequences that it becomes troubling pretty quickly. Quite frequently, we see attempts to use publicity rights to stop perfectly legitimate uses of a likeness just because someone doesn't like how it was used.
In a recent case, a Cuban author sued over his name and images being used on a TV show and also on clips of that show that were uploaded to YouTube. The good news is that the court seems to have quickly realized that this claim has nothing to do with what publicity rights are supposed to cover. The judge points out that publicity rights don't mean a TV show can't use your name or image. It's only supposed to prevent the idea that you endorsed some product that you did not. And having the guy's name and image on a television program doesn't suggest he's endorsing anything.
It's good to see courts rejecting ridiculous publicity rights claims, but as we see more and more of these, it's only a matter of time until a judge makes a big mistake.
Back in September last year, we wrote about an important district court ruling that said video game maker EA was within its rights to use a likeness of football player Jim Brown in its video games. In the past few decades, there has been a dangerous expansion in so-called "publicity rights," like this that effectively put serious limits on what others can do. This expansion needs to be challenged, even if it seems like something so simple as a video game. Not surprisingly, however, Brown is now appealing the district court's decision to dismiss the case, saying that he wasn't able to present all the facts. We noted last year that this case would certainly be appealed, so this doesn't come as a huge surprise. Still, it should be a case worth watching if you are concerned about the expansion of concepts like publicity rights (and, on the flip side, about free expression rights).
We've mentioned it in passing on this site, but one especially troubling area of what (misleadingly) called "intellectual property" law is the rise of publicity and/or privacy rights (especially in New York and California), which try to get famous people an "intellectual property" type monopoly right over their names or likenesses, even in ridiculous situations. The latest such example involves the estate of actor Humphrey Bogart, suing furniture company Ashley Furniture for creating a furniture colleciton named "Bogart." From what I can tell, it looks like.. well, lots of other furniture on the market these days. For example, below is the sectional/recliner sofa:
Having recently gone shopping for similar couches, I can tell you first hand that they pretty much all look like that. Nothing about that couch screams "Humphrey Bogart," and the name certainly isn't going to make one bit of difference in the purchasing decision. It's not as if the name makes a big difference here, so it's pretty silly to claim that anyone is buying anything in this collection of furniture because of the association with the actor. But, that's what happens when you get ridiculous laws like publicity rights laws, that create a monopoly right out of someone's name.
Steve R. was the first of a bunch of you to send in the news that Hebrew University is suing GM for using Albert Einstein's likeness in an ad. A separate article notes that Einstein "is among the world's top-earning dead people" because so many people have to pay to license his image. Apparently Einstein, when he died, left his papers to the university, who is now cashing in. Nice to know that celebrating genius has a price, huh? Copyright is supposed to be about furthering the advancement of science, and here it's being used to profit off the memory of a great scientist. Update: There's a good discussion in the comments on the details of this, as it was not at all clear who owned what rights and what was being sued over in the original news articles. But folks have turned up the details, which involve publicity rights -- a still emerging area of intellectual property law that differs greatly from state to state.
Rose M. Welch points us to the news that the website TheDirty.com was sent a ridiculous cease and desist letter from lawyers representing Tess Taylor (apparently some reality TV personality whom I'd never heard of), after the site posted photos (warning: NSFW) of Taylor topless and partaking of various drugs (apparently both pot and black tar heroin).
Of course, these days you half assume that such stories are planted on purpose to build up the reputations of various desperate b- or c-list celebs. And, of course, claiming that the cease-and-desist is covered by copyright almost guarantees that it will get more attention. This is somewhat standard language on many cease-and-desist letters, but it's unlikely that there is any legal basis for it. There is little creative effort in the cease and desist, which is mostly boilerplate. It's difficult to see much copyright being allowed. Even if there was (and anyone want to bet on whether or not the letter was registered?) it would appear that fair use would allow the publication of the letter, despite the claims that:
This letter is a confidential legal communication and is not for publication. Any publication, dissemination or broadcast of any portion of this letter will construe a breach of confidence and a violation of the U.S. Copyright Act.
Good luck testing that one in court. First of all, even if the letter really was covered by copyright, fair use would almost certainly protect the publication of the whole thing (for the sake of reporting), if not "portions" of it. And the claim of "breach of confidence" is a huge stretch as well. That's usually applied to things like doctor-patient relationships. Arguing that the lawyers for Tess Taylor and the site TheDirty.com have any sort of "confidential" relationship established is beyond ridiculous.
As for the reasoning behind the C&D... that seems to come from similarly questionable legal theory. The lawyers rely on California's "rights of privacy and publicity," but the law in question there was written to protect celebrities from having their images used in advertisements for endorsement purposes. It's a stretch to suggest those same rights apply simply to "photos you don't like... because they're published on a for-profit site." Again, it seems just as likely that the whole ordeal was cooked up for publicity anyway, but it's still annoying to see various laws abused in this manner -- whether the letter represents a real legal threat or is just part of a publicity campaign.
One of the trickier and more recent "intellectual property" (and I use the term loosely) rights out there is the "right to publicity" which was an odd sort of invention designed as a way for certain famous people to stop companies from putting their pictures in ads and imply endorsement. But there are some fuzzy borders here, especially when it comes to First Amendment free speech rights. Paul Alan Levy has an excellent discussion on two separate cases where publicity rights came up with regards to President and Mrs. Obama. In the first, PETA used Michelle Obama in an advertisement, as an example of someone who doesn't wear fur. In the second, sporting goods company Weatherproof used a photo of Obama wearing one of the company's jackets while he was in China to highlight the sort of customer they have. Levy points out that the White House was upset and complained about both uses, but likely had no legal right to complain:
As in the Michele Obama case, the White House complained, but everybody seems to agree that Obama won't sue, not just because presidents don't trifle with such litigation, but because Obama has no legal leg to stand on. He is a public figure and the ad is truthful -- Obama did, in fact, wear its jacket standing near the Great Wall...
That is not to say that PETA and Weatherproof ran no risk when they started these ad campaigns. When receiving questions from reporters, the White House could have released statements from her denouncing PETA for extremist opposition to the use of animals in medical testing ("she thinks it is better to test on animals first instead of using poor people and prisoners"). Similarly, the White House could have told reporters, oh yes, he did wear the jacket but later decided that it is a cheap and inferior product. But instead, the White House seems to be playing along, at least with PETA, by agreeing that Obama really does share PETA's position on furs.
Where it gets even more interesting, is that Levy notes that a reporter for the Washington Post pointed to the similarities with various media publications writing up some story about the Obamas solely to get an Obama photo on the cover, knowing that it would sell well. However, oddly, the Post reporter seems to think this is just fine for the media, but a problem when it's someone else:
What is interesting here is the assumption that it is (mis)appropriation when a political group does it and when a clothing company does it, but not when the media do it. But isn't is obvious that magazines were putting the Obamas on the cover to sell magazines? Givhan's article admits that -- she says, "no small part of the allure has been the sort of personal magnetism that connects with consumers as they bide their time in checkout lanes," and quotes PETA's preseident explaining, "It's hard not to look at her and feel good."
This, too, is a use of the Obamas' selling power to sell the products of companies' who have never received consent from the Obamas. In fact, political groups and companies as well as the media are constantly trying to associate themselves with a variety of famous personages, no matter what some "right of publicity" cases may say. It is high time to consider how far the right of publicity needs to be cut back, or whether it causes more trouble than it is worth.
Indeed. The deeper you look at the right of publicity, the more ridiculous and less justifiable it seems. It almost always serves to stifle free speech.
Earlier court rulings have found that sports leagues cannot stop videos games from using player stats, since that's factual information. But, what about player likenesses? Many had assumed that was still forbidden without a license, but a new court ruling has found otherwise. Former football player Jim Brown had sued EA, claiming the use of his likeness violated his rights, but a district court judge has dismissed the case, saying that video games are "expressive works, akin to an expressive painting that depicts celebrity athletes of past and present in a realistic sporting environment," and thus are protected by the First Amendment. The case will almost certainly be appealed, but for now, it's a big win for video game makers and their ability to use player likenesses in their games without licensing them first.
