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Who has the right to use “Material Girl” for clothing line: Madonna or LA Triumph?

August 20, 2010 No Comments »
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Madonna has entered into a variety of licensing and branding deals recently including with her daughter, Lourdes.  One of those deals is for an exclusive line with Macy’s to be called “Material Girl” after the nickname she has been known by since her hit song of the same name in the 1980s. 

L.A. Triumph has filed a lawsuit to stop use of the Material Girl name by Madonna and Macy’s, on the basis that it has been using a line also called “Material Girl” since 1997. 

This situation raises a variety of interesting questions concerning right of publicity and trademark.  It can hardly be debated that “Material Girl” is a well-known, long-standing, and unequivocal reference to Madonna.  Madonna has stated that she in fact does not like that nickname, as detailed in the article located at the link below.  However, there is little question that commercial use of a nickname can be just as much a right of publicity violation as use of the person’s actual name.  In my Right of Publicity classes, I use the idea of something that is “unequivocally identifiable.”  In this instance, I believe Madonna is unequivocally identifiable by the nickname “Material Girl,” whether she likes it or not. 

However, there is the possibility of an entity acquiring trademark interests in a name that it has been using for a long time.  L.A. Triumph has reportedly been using the name “Material Girl” for over a decade.  One question I have is whether L.A. Triumph’s line makes any other association to Madonna, whether overt or tacit.  Perhaps that will be investigated as the lawsuit evolves.

Here is a link to the story:

http://www.nypost.com/p/blogs/popwrap/madonna_material_girl_woes_TvYY9NjKfDkzY0tVPJKakJ


Vampire Weekend Contra album cover controversy

August 19, 2010 No Comments »
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A former model has sued the band Vampire Weekend alleging unauthorized use of a Polaroid photo of her on the cover of their release “Contra.”  The model, Ann Kirsten Kennis, is seeking $2 million in damages for use of a Polaroid picture taken of her in 1983.  Kennis apparently learned of the album cover when her daughter showed her the album.  Kennis’s lawyer said the picture was a private family photo and not a modeling picture intended for commercial use.  Her lawyer says that that Kennis’ mother sometimes sold collections of the photographs she took to shops and charity bazaars. 

As any student of Right of Publicity matters, or any observer of this website, might know, such a transaction (sale of a bulk amount of random pictures) does not necessarily convey the range of clearances and permissions necessary to make commercial use of the specific images included in that bulk sale.

The picture made its way to photographer Tod Brody, who is also named in the suit.  The lawsuit alleges that Brody informed Vampire Weekend that he took the picture, and further alleges that Brody forged Kennis’ signature on a release form. 

Vampire Weekend apparently paid a $5,000 for the picture.  In a prepared statement, Vampire Weekend said “As is standard practice, Vampire Weekend and XL Recordings licensed the rights to use the photo on the cover of Contra pursuant to a license agreement that contains representations and warranties authorizing this use of the photo. Now that a lawsuit has been filed, we look forward to having the matter resolved in court.”

We shall see.


Times Square Showdown: The Naked Cowboy vs. The Naked Cowgirl

August 18, 2010 No Comments »
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If you’ve been to Times Square, you’ve probably seen them.  In fact, even if you haven’t been to Times Square, you probably have seen or heard of them.  On one side is the Naked Cowboy, Robert Burck, known for wearing only white underwear, cowboy hat and cowboy boots while singing and playing guitar in all manner of weather, throughout the year, in Times Square.  On the other side is the Naked Cowgirl, known for wearing a bikini, cowboy hat, and cowboy boots while singing and playing guitar in all manner of weather, throughout the year, in Times Square.  There obviously are similiarities and parallels between the two. 

Robert Burck, the Naked Cowboy claims that the Naked Cowgirl, Sandra Brodsky, is infringing the look and act he started over a decade ago.  The Naked Cowboy has trademark registrations and has licensed his name and related intellectual property rights, including his right of publicity, in a variety of contexts as this site has previously reported.  He also has attempted to set up a franchise system whereby others seeking to perform a similar act can do so under agreement from Burck.  Brodsky has refused to sign such an agreement, claiming that the payments to Burck would make it economically unattractive to continue the act. 

Burck also filed suit against Mars, Inc. in 2008, concerning a billboard campaign in Times Square depicting the M&M characters in a style similar to the Naked Cowboy.  That case settled under confidential arrangements.

Here is a link to the complaint filed by Burck in late July, 2010:

http://www.manatt.com/uploadedFiles/News_and_Events/Newsletters/AdvertisingLaw@manatt/Naked%20Cowboy%20v%20%20Brodsky.pdf


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