Entertainment Law Matters

In rejecting a right of publicity claim by Hebrew University of Jerusalem, which claims to control the rights to Albert Einstein, a California federal court has ruled that the common law right of publicity under New Jersey law has a maximum post-mortem duration of 50 years. The right of publicity gives an individual the right to control the use of his or her identity for commercial purposes during his or her lifetime and, in some states, for a period after death. Continue reading »

Hill v. Public Advocate of the United States, No. 12 Civ. 2550 (D. Colo. Sept. 26, 2012).

On Wednesday, September 26, 2012, married couple Brian Edwards and Thomas Privitere, along with Kristina Hill, their Brooklyn-based photographer, filed a lawsuit against an anti-gay rights organization named Public Advocate of the United States (“PA”).  The same-sex couple alleges that PA misappropriated their identities by copying a photograph that Hill had taken of them posing and kissing by the Brooklyn Bridge shortly after their engagement,

and incorporating it into two flyers distributed during local political races in Colorado:

The two individuals referred to in the posters – Jean White and Jeffrey Hare – were Republican primary candidates who had supported a bill that, if passed, would have granted same-sex couples the right to enter into civil unions.  If it weren’t clear from the bold lettering, the blood-red banner framing the words, the quotes around “family values” or the suggestive question marks – PA does not support same-sex marriage or civil unions.  Continue reading »

A New York court has dismissed “Flying Rabbi” David Sondik’s lawsuit against late night host Jimmy Kimmel and ABC.  Sondik’s complaint claimed that Kimmel and ABC had used his image without consent in a Jimmy Kimmel Live! segment that mocked a 2010 “business meeting” between basketball star LeBron James and Rabbi Pinto.

The segment began with Kimmel showing an image of LeBron seeking “advice” from Rabbi Pinto regarding his 2010 free agency decision.  Kimmel then announced that he too had met with Rabbi Pinto, and showed the audience a video of himself in a car speaking with an unidentified man dressed in Hasidic garb, who was loudly chanting.  However, the Hasidic man in the video was not Pinto.  Instead, Kimmel had spliced YouTube footage of New York’s “Flying Rabbi” David Sondik– a minor YouTube celebrity. Continue reading »

- Judge slashes jury award in a Jimi Hendrix trademark infringement lawsuit. Recently, a jury awarded Experience Hendrix, LLC, the successor to Jimi Hendrix’s intellectual property rights, a verdict of over $1.7 million, which a federal judge subsequently trimmed down.  As we reported in March, Experience Hendrix sued Hendrixlicensing.com, an online merchant of Jimi Hendrix memorabilia, for trademark infringement, violation of the Washington Consumer Protection Act and violation of Hendrix’s right of publicity.  While the court barred the right of publicity claim on the ground that those rights expired upon the musician’s death, it allowed the other claims to proceed.  Hendrixlicensing.com argued that the jury verdict was not supported by the evidence.  The court agreed, doing away with the damage awards for lost profits, injury to goodwill and injury to reputation.  The court’s opinion noted that the plaintiff had not submitted evidence of its overhead expenses related to lost profits or offered any method of estimating the amount of damage to its goodwill or reputation.  Experience Hendrix walked away with $50,000 for attorney’s fees, plus the leftover damages award of $60,000, and a permanent injunction against Hendrixlicensing.com’s use of its trademarks.

- 50 Cent’s Before I Self Destruct did not infringe book. A New Jersey federal court dismissed a book author’s copyright infringement lawsuit against 50 Cent, ruling that his film Before I Self Destruct and a companion album by the same name did not infringe the plaintiff’s book.  The writer of The Preachers Son–But the Streets Turned Me Into a Gangster accused 50 Cent of poaching from his book.  While the court found that the works shared similar characters, themes, and setting, it dismissed the copyright infringement claim because “a simple viewing of the two works reveals that they are entirely different with respect to plot, mood, and sequence of events.”  The similarities were limited to the generic themes of a difficult upbringing and a life of violence and street crime, as well as the use of clichéd expressions “common in gangster movies and hip hop music.”

- Gergana Miteva

- Float like a butterfly, sting like a lawsuit.  Muhammad Ali Enterprises (MAE), owner of the famed boxer’s intellectual property and publicity rights, is suing Canadian digital reading device manufacturer, Kobo Inc. (“Kobo”), for using Ali’s slogan “Float like a butterfly, sting like a bee,” without permission.  In its complaint, MAE accuses Kobo of making unauthorized commercial use of its registered trademark for the slogan in a New York Times advertisement.  MAE claims that Kobo featured the phrase as its “attention getter” by making it “the most prominent wording on the page.”   To establish Ali’s and his slogan’s recognition, MAE quotes a 2011 study which ranked the boxer as first among all athletes in familiarity among 12-64 year-old Americans.  MAE further describes its highly selective licensing process for the phrase, listing Gatorade, Epson, and Intel as prominent companies which have licensed it for use in various commercial campaigns.  MAE is seeking an injunction against further use of the advertisement, as well as damages.

- Latin Jazz musicians sue the Grammys for cutting their category.  Four Latin Jazz musicians filed a class action lawsuit in state court in New York after the organizer of the Grammy awards, the National Academy of Recording Arts and Sciences, eliminated the Best Latin Jazz Album award category.  “The concern is [that] by lumping several categories together, it makes it much easier for larger record labels and those artists who have already gained recognition to dominate,” one of the plaintiffs said.  In their complaint, the musicians accuse the academy of harming their career by depriving them of the opportunity to be nominated for or win a Grammy.  According to the complaint, the category was started in 1995 to bestow “a long-overdue recognition to the highly-regarded artistic work of musicians who blended the improvisatory leaning of jazz with the native music and cultures of the Caribbean and Central and South America.”  The musicians are seeking class action status and are hoping that more artists will join them.  The recording academy has issued a statement  describing the lawsuit as “frivolous” and “without merit.” 

- Judge allows athletes’ publicity rights suit to proceed.  A federal judge rejected Electronic Arts’ motion to dismiss antitrust claims alleged against it in a class action lawsuit filed by former college basketball and football stars.  The athletes alleged that the NCAA and its licensing arm, the College Licensing Company, conspired with Electronic Arts (EA) to fix prices on student athlete compensation, preventing plaintiffs from the ability to control and profit from the use of their publicity rights.  According to the plaintiffs, the NCAA and CLC licensed out the athletes’ images, likenesses, and names to EA and included in the contract a provision setting athletes’ compensation at zero.  Although EA’s video games identify the athletes only by number, they permit players to upload rosters containing the athletes’ names and statistics.    Rejecting EA’s motion to dismiss, the federal judge pointed out that EA agreed to go beyond the NCAA’s rules against current student athlete compensation by not offering compensation to former student athletes.  Trial is set for March 2013.

 - Gergana Miteva

An Indiana federal court has ruled that the Indiana right of publicity statute, which has the longest post-mortem period of continuing the right of publicity, does not apply to personalities who died before 1994, the year the statute was enacted.

In Dillinger, LLC vs. Electronic Arts, Inc., 2011 WL 2446296 (S.D. Ind. June 15, 2011), plaintiff, which claimed to have acquired publicity rights from gangster John Dillinger’s heirs, brought an action based on the broad Indiana right of publicity statute, Ind. Code § 32-36-1-8(a), against defendant videogame maker for the use of “Dillinger Level Three Tommy Gun” and “Modern Dillinger” as the names of weapons in defendant’s series of The Godfather video games.  The statute prohibits the use of a personality’s right of publicity for a commercial purpose during the personality’s lifetime and for 100 years after the personality’s death absent written consent.  Defendant moved for a judgment on the pleadings. Continue reading »

- Lady Gaga songwriters in legal scuffle over royalties.  Calvin “Sci-Fidelity” Gaines and Rob Fusari, co-composers of some of Lady Gaga’s mega hits from her album entitled The Fame, are in a $1 million legal battle over royalties and credit for the Lady Gaga songs. The two have worked together since 1997, composing and producing music for Destiny’s Child and Whitney Houston.  But their relationship went sour last year when Fusari purportedly ignored Gaines’s requests to get credit and royalties for the Lady Gaga songs.  In his complaint against Fusari, Gaines claims that Lady Gaga and her production companies have agreed to be bound by the ultimate outcome of the case and compensate him if he comes out victorious.  The Fame has been certified platinum three times and has sold over three million copies in the United States alone.  This is not the first time Fusari finds himself in court over his former girlfriend, Lady Gaga.  Last year, he sued the pop star for $30 million, claiming he discovered her, helped her develop her performance style and came up with her stage name.  The case was eventually settled out of court for an undisclosed amount. 

- Celebrity class action swept under the red carpet. A Los Angeles court dismissed actress Shirley Jones’s right of publicity claims against online celebrity photo licenser, Corbis, finding that she consented to being photographed at red carpet events.   Jones is a well-known stage and film actress (she starred in the filmed versions of Oklahoma! and The Music Man, but perhaps is best known for portraying Shirley Partridge in The Partridge Family, an ABC sitcom about a widowed mother of five who travels with her kids’ pop rock band).  By her complaint, Jones sought to be lead plaintiff in a class action lawsuit, to enable other celebrities whose photos have been displayed on Corbis’s website to join the lawsuit.  The actress accused Corbis of violating her right to control the commercial exploitation of her name, image and likeness, by displaying photographs of her for financial gain.  All of the ten photographs of Jones at issue in the case were taken at high-profile award ceremonies.  The court pointed out that walking on the “red carpet” and posing for photographers is a matter of choice for celebrities, because celebrities are made aware that there are other entrances they can use to avoid the paparazzi.  By making that choice, the court reasoned, Jones effectively consented to the commercial use and exploitation of the images.  The court further noted that a contrary finding would require individual photographers to get express consent from each celebrity.  The decision addresses Jones’s claims against Corbis, but it does not mean that a third party could use her image from one of these red carpet events for commercial purposes.  Any such use could lead Jones to file a new lawsuit.

“A real-life Indiana Jones” accused of being fictitious. Adventurer-turned-philanthropist, Greg Mortenson, is subject to a class action lawsuit accusing him of fabricating his memoir Three Cups of Tea, and of fraudulently styling himself as a “a real-life Indiana Jones” to sell the book.  The lead plaintiff, a Montana lawmaker who read the memoir, questions the facts of the two central narratives in the memoir.  The first is that during a failed attempt to climb K2, Mortenson was inspired by the kindness of the inhabitants of a small Pakistani village to build schools there, which he subsequently did through his charity, Central Asia Institute.  The second is that the Taliban in Pakistan kidnapped him and held him against his will in 1996.  The plaintiff claims the author tricked her into buying a “phony and fictional story,” which she thought was an inspirational memoir, and wrongfully induced her into donating to the Central Asia Institute.  She is asking for disgorgement of the book’s profits and for the book to be marketed as a work of fiction.  This class action lawsuit follows a 60 Minutes exposé on the book, outlining the program’s investigation of its veracity and concluding that Mortenson only visited the Pakistani village a year after he claims to have done so and that most of the schools he purports to have built either do not exist or were built by somebody else.  60 Minutes also broadcasted interviews with Mortenson’s alleged kidnappers who deny belonging to the Taliban and having kidnapped him.  Mortenson has responded to the program on his charity’s website, vehemently denying all accusations.  Three Cups of Tea remained number one on the New York Times best seller list for three years, it has sold over 4 million copies and it has been translated into 47 languages.

 - Gergana Miteva

- Michael Moore settles “Sicko” Suit.  The Hollywood Reporter reports that filmmaker Michael Moore settled a copyright infringement lawsuit over the allegedly unauthorized use of third-party footage in his Academy Award nominated documentary “Sicko.”  The plaintiff sued Moore for using a short clip from a video he shot while visiting London without his permission.  Moore received the footage in response to his call for stories on healthcare experiences outside the U.S.  The settlement, for an undisclosed amount, followed plaintiff’s appeal of a federal court decision in Moore’s favor on First Amendment grounds.

- AP reporter sued for blowing the whistle on NBA referee.  Longtime NBA referee Bill Spooner has sued the Associated Press (the “AP”) and one of its reporters over a tweet.  The AP reporter’s tweet said that “Ref Bill Spooner told Rambis he’d ‘get it back’ after a bad call. Then he made an even worse call on Rockets. That’s NBA officiating folks,” implying that Spooner would make amends to Timberwolves coach Kurt Rambis for a bad call.  In his Complaint, Spooner recounts a different story, claiming he did not respond to the coach’s grievances, but merely promised to review the call at half-time.  The referee is asking for an injunction removing the tweet from Twitter.com and for more than $75,000 in damages.

- Lawsuit brewing over use of “Spiral Jetty” on beer label. A Salt Lake City brewery is taking heat from New York-based Dia Art Foundation, a co-owner of the copyright in “Spiral Jetty,” for using a photograph of the earthwork on a beer label.  Built entirely out of mud on the shore of the Great Salt Lake, “Spiral Jetty” is considered to be sculptor Robert Smithson’s most significant work. In its efforts to preserve Smithson’s original vision for the work, the foundation plans to have all images and reproductions of it licensed. While the brewery called the endeavor “ludicrous” because the work has been photographed countless times, it is reportedly open to licensing discussions if the foundation can prove its copyright ownership.

- “Hurt Locker” Filmmakers wave a white flag in a piracy class action. The copyright holders in the film “Hurt Locker” recently dropped their claims against approximately 100,000 BitTorrent users who allegedly pirated the film.  While the plaintiffs’ decision to “desert” the lawsuit remains a mystery, commentators speculate that recent dismissals of similar lawsuits on procedural and jurisdictional grounds may have influenced the move.  Nevertheless, the accused pirates should hold off on their victory lap, because the cases were dismissed “without prejudice” — meaning the copyright holders have the right to re-file their Complaint.

- Featuring Slash may cost you $20M in cash. Celebrated Guns and Roses frontman Axl Rose sued videogame publisher Activision Blizzard for breach of contract because it included Rose’s ex-bandmate Slash in Guitar Hero III: Legends of Rock in contravention of the parties’ agreement.  In his Complaint, Rose alleges that he licensed the use of the G N’R song “Welcome to the Jungle” for the videogame on condition that Slash would not be featured in the game.  Rose also claims that Activision spun a “web of lies and deception to conceal its true intentions” to not only include Slash in the game, but make him a playable avatar. Apparently having exhausted the game’s battle arenas, the two rockers will have to duke it out in court.

- Spinning Charlie Sheen’s catch-phrases into cash-phrases.  It is open season on trademarking Charlie Sheen’s catch-phrases, according to several entrepreneurs who have been sprinting to the U.S. Patent and Trademark Office to trademark his utterances.  Sheen himself is in the running, and he will no doubt coin a few more gems on his “Violent Torpedo of Truth/Defeat Is Not an Option” tour.  Some of Sheen’s most popular quotes at the USPTO are “Winning,” “Tiger Blood,” and the “Defeat is not an Option,” all of which Sheen directed at his former bosses at “Two and a Half Men” who recently fired him from the show.

- Netflix Privacy Suit. Online video streaming giant Netflix faces a class action lawsuit over retaining members’ billing and viewing information after their subscriptions have expired.  In a five-count complaint filed in federal court, former subscribers accuse Netflix of, among other things, violating federal privacy laws by holding onto confidential data and unjustly enriching itself by selling their personal information to third parties.  Plaintiffs rely on the Video Privacy Protection Act, a federal law that requires the destruction of consumer records that are more than one year old.  If this case goes to trial, it may resolve a longstanding legal question of whether the law applies to online video streaming as well as physical video rental.

- Gergana Miteva

- The $50 million headline.  Katie Holmes slapped Star Magazine with a $50 million dollar defamation lawsuit over headlines claiming she is a drug addict.  The Complaint alleges that Star libeled Holmes with headlines stating: “KATIE DRUG SHOCKER” and “ADDICTION NIGHTMARE.”  The tabloid based its story on Holmes’ use of a device called an “e-meter” in Church of Scientology counseling sessions, which allegedly may trigger a person’s body to release endorphins causing a feeling of euphoria.  According to Holmes, exercising produces the same effect.  Star, of course, did not fail to mention the other half of TomKat in reporting further that the proclaimed addiction is “the reason she can’t leave Tom [Cruise].”

 - Creator of Betty Boop did not retain copyright: The Ninth Circuit Court of Appeals affirmed a lower court ruling that the creator of the Betty Boop cartoon did not hold a valid copyright in the character.  During the 1930s, Max Fleischer created the animated Betty Boop character, known for her distinctive appearance – a combination of big-eyed childishness and sophistication.  Years after Fleisher sold the intellectual property rights for the character, the Fleischer family attempted to repurchase them and later sued A.V.E.L.A., whose products included dolls, t-shirts and handbags featuring Betty Boop’s image, alleging copyright and trademark infringement. The court dismissed the copyright claim for lack of evidence that the Fleischer family owned the copyrights in and to the Betty Boop character.  In striking down the trademark claim, the court deemed A.V.E.L.A.’s use of Betty Boop’s image a “functional product” not likely to be associated with the plaintiff and thus not infringing on the trademark.

 - A shot at a lawsuit with Tila Tequila. A Los Angeles court ruled that Tila Tequila’s defamation suit against her former photographer may proceed. The MTV reality show star sued her former employee, Garry Sun, for allegedly defaming her on a celebrity gossip web site.  Sun countersued for defamation and intentional infliction of emotional distress, alleging that Tequila called him a “crazy paparazzi” that “needs to be put in jail.”  In addition to working for the reality star in various capacities, Sun had a romantic relationship with Tequila that concluded with her obtaining a three-year restraining order against him last November.  The judge found both sides’ allegations to be unclear and directed them to file amended complaints and “get this right” within 10 days.

 - Will Hulk “Bodyslam” Another Adversary?  Hulk Hogan, a professional wrestler and pop culture icon, is suing a car dealership for allegedly using his characteristic catch-phrases in a TV commercial. The complaint contends that the ad exploits Hogan’s celebrity identity when it warns consumers “tired of wrestling for a good deal” against getting “body slammed” with bad deals.  Hogan also cites the ad’s use of the catch-phrase “brother” when the ad characters address one another, as well as referring to biceps as “guns” and to fans as “Hulkamaniacs.” This suit comes as another installment in a series of similar lawsuits where Hogan has, in fact, succeeded in “body slamming” his adversaries and obtaining large settlements.

 - Too good to be false. The author of the critically acclaimed and commercially successful novel “The Help” filed a response to a former domestic employee’s lawsuit which contends that a character in the book was based on her.  The plaintiff, who seeks $75,000 in damages, claims she was humiliated by the novel because the character speaks in a thick ethnic vernacular and is subjected to racial slurs.  The author maintains the novel is entirely fictional and that the character is loosely based on a different maid that she had as a child.  So far, “The Help” has sold millions of copies and according to The New York Times, a film based on the novel is scheduled to be released this summer.

 - Gergana Miteva

A federal judge in Washington state recently ruled that amendments to Washington’s right of publicity statute were unconstitutional, and thus could not resurrect Jimi Hendrix’s expired publicity rights.  The decision is a blow to the plaintiffs, Experience Hendrix, LLC and Authentic Hendrix, LLC (collectively, “Experience”), which own and license Hendrix’s intellectual property rights. Continue reading »