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NFL Licensing Issue to be decided by the United States Supreme Court

June 30, 2009 No Comments »
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It is relatively rare for the U.S. Supreme Court to accept a petition to hear a case, so it is noteworthy that the highest court in the land will decide whether the NFL and the 32 teams in the league can enter into exclusive licensing deals without violating antitrust laws.   The dispute goes back to an exclusive deal that the NFL made with Reebok for manufacture of headwear. Prior to that deal in 2001, the NFL had allowed a company called American Needle to make headwear as well.   The NFL prevailed at the appellate level, and American Needle was successful in petitioning the Supreme Court to issue a final ruling on the matter.  Reportedly, the gist of the suit hinges on whether the NFL is a single entity or in fact thirty-two separate businesses (each of the teams in the league).  If it is determined to be separate businesses, the issue becomes whether exclusive licenses like with Reebok violate antitrust laws because the league and those “separate businesses” are working too closely together.  Other leagues will be paying attention to the outcome of this matter.  The notable exception is MLB, which has an antitrust exemption already in place.  Presumably, other professional leagues will issue amicus briefs in support of the NFL’s position that the teams do not constitute separate businesses for purposes of antitrust laws.


Will Michael Jackson’s Death Spawn a Battle Over His Assets, Including His Intellectual Property and Right of Publicity?

June 26, 2009 3 Comments »
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Perhaps it’s inevitable.  Michael Jackson’s sudden, tragic death may trigger a battle over his assets, which would include his intellectual property and right of publicity interests.  CNN.com has already reported on this possibility at the following link:  http://www.cnn.com/2009/SHOWBIZ/06/26/jackson.children.will/index.html

Sometimes, the assets and intellectual property rights of a famous individual will be carefully transferred through testamentary documents based on the celebrity’s wishes.  Other times–and more often than many might suspect–it is left for the heirs and potential claimants to fight it out.  Adding to the feeding frenzy is the expectation of sudden fortune to be claimed, which tends to bring distant “relatives,” “long-lost friends,” and claimants with even more mysterious links to the celebirty out of the woodwork.  I’ve seen it before.  Some people claim to be the long lost child of Marilyn Monroe.  Others claim to be Marilyn reincarnated.  And when Rosa Parks died, a lengthy probate process ensued in Michigan over who had a viable claim to her estate.  With not much real property to divide, that battle was almost entirely about Rosa Park’s intangible rights, which essentially is her right of publicity.

In the case of Michael Jackson, it has not yet been disclosed what testamentary documents he may have put in place.  His family circumstances are rather complex, so without a clear succession plan for assets like his right of publicity, it could take a team of lawyers and a judicial decree to resolve the question.   As the above CNN link reports, it is not known whether he had a will in place at all.

Jackson was married several times, and had children who were born to two mothers, Debbie Rowe and an unidentified surrogate.  Rowe gave up her parental rights to her two kids with Jackson, but later sought to have her parental rights reinstated.  In the absence of testamentary instructions from Jackson, or any possible assignment of his rights during his lifetime, the laws of intestacy will likely control.  Interpretation of a given state’s intestacy likely will include examination of Jackson’s spouses, children, siblings, and parents.  Since he had all of the above, it will be interesting to see if things can be worked out amicably.

Even with his reported debt of almost $500 million, I expect Jackson’s assets to be considerable.  His music publishing interests, as well as a 25% ownership in the Beatles music publishing catalog, will be valuable for a long time to come.  What is less likekly to be reported, but is potentially every bit as valuable, is Michael Jackson’s right of publicity, which would be the subject matter for any advertising or merchandising that issues from this point forward. 

Sadly, the craziness that surrounded much of Michael Jackson’s life will probably not stop any time soon, even after his untimely death on June 25, 2009.

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Bobbleheads: Intentionally Unflattering or a Symptom of the Product Category?

June 25, 2009 No Comments »
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Recently, the following question was posed to me through the site:  Question: I was looking at Barack Obama bobbleheads and other merchandise and noticed that they are really quite bed representations of our fair president.  Some look downright not at all like him.  Was this done on purpose?  I’ve seen that actual picture is used on some products.  What’s going on here.  Is there a difference between actual pictures and artists representation?

 

Answer:  Through my work with most of the leading bobblehead companies, I can say that the better companies strive for accuracy in their products.  That said, I can recall any number of times when the family of the clients I represented felt that the bobblehead rendering did not look accurate enough.  There is a caricature-like element to the product, and I can’t rule out that perhaps in some cases the likeness of the President is intentionally unflattering.  In this instance, I would not expect there to be much legal distinction between actual pictures and artist representation when converted to the bobblehead product.

 

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Band names: Trademark or Right of Publicity Infringement?

June 25, 2009 No Comments »
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Recently, the following question was posed to me through the site:  I am currently aware of a website that is selling products, for example t-shirts, that include the name of a band I represent. This company does not have permission to be using this bands name, or selling any products containing their name. If the band would like to settle this issue without filing a lawsuit, what would be the best way of dealing with this matter?

 

Answer:  Generally, band names are in the arena of trademark law as opposed to right of publicity.  Now, some personalities are so identifiable with their band name that an infringement of the band name can be purused as an infringement of the band member’s right of publicity (e.g., The Rolling Stones and Mick Jagger).  If the t-shirts includes images of the band members, then conceivably, each band member could have a right of publicity claim as well as a trademark infringement claim.  The best way of dealing with this, all things being equal, is to issue a cease and desist letter.  A general statement of the activity that is offending the intellectual property rights of the band will suffice.  It’s also a good idea to state specifically in the letter that the recipient has a certain amount of time to respond in writing, and that the letter is issued without prejudice to the rights of the band to pursue the claim if need be.  I hope this is helpful.  

 

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MLB Cardinals Manager La Russa files suit over fake Twitter page

June 5, 2009 2 Comments »
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As exhilirating as new technology like social networking tool Twitter can be, it also raises a variety of legal issues concerning the Right of Publicity.  What happens when a user creates an account pretending to be a famous athlete, musician or other famous figure and allowing the assumption that the site is authorized by if not created by that personality?  In addition to other potential legal issues like fraud and defamation, such activity also could drive attention and traffic to the fake site, creating other possible benefits to the impostor.  Is there an obligation on the company’s behind sites like Facebook, Myspace or Twitter to proactively prevent this kind of infringement from taking place?  Perhaps the suit filed by Cardinals Manager Tony La Russa last month will bring some clarity to these questions.  ESPN’s report on the story can be viewed here:

http://sports.espn.go.com/mlb/news/story?id=4230602

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