In response to a cease and desist letter from Justin Bieber’s representatives demanding that the “Joustin’ Beaver” app be terminated, RC3 (maker of the Joustin’ Beaver” app) has filed a declaratory action. The lawsuit was filed in Jacksonville, Florida.
RC3 claims the video game is a parody on Justin Bieber’s life, as game play involves signing “otter-graphs,” paparazzi-like hogs, and evading the “whirlpool of success.” How this is a parody on Justin Bieber’s life, aside from a few grade-school puns, is hard to discern. That it is popular and has a built-in market thanks to Justin Bieber’s name is not. Bieber also has not been all that controversial in his public and private life as compared to, say, a Lindsay Lohan, who might seem more fitting for such a “parody.”
There certainly is room in the Right of Publicity universe for a parody defense, but it almost always seems to be invoked as an attempt to defend blatant opportunism and appropriation. Video games historically have not been treated as exempt from Right of Publicity and other intellectual property doctrines, though the effort to afford them that heightened level of protection has been vigorously pursued in recent years. Despite the creative decisions that go into creation of a video game, I see a clear line of delineation between mediums such as books, movies or news reporting and that of video games.
Books, movies and news reporting, at their core, are about the expression of ideas and conveying information. Video games are not. There are numerous rulings explaining how the First Amendment is not a one-size fits all “shield” to otherwise infringing actions, including the United States Supreme Court in the landmark Zacchini case. http://rightofpublicity.com/pdf/cases/zacchini.pdf And, of course, even the generally exempted mediums can exceed those protections and stray into infringing territory. But video games should not be entitled to exempted status as a general rule. The Supreme Court ruling striking down a California law prohibiting sales of violent video games to minors is not an appropriate reference point in relation to an intellectual property infringement of the Joustin’ Beaver variety, though it seems to be cited as support for the notion that video games should be treated in the same manner as books and movies. http://www.hollywoodreporter.com/thr-esq/supreme-court-strikes-down-california-205827
Here is a link to Eriq Gardner’s write-up in The Hollywood Reporter.
When losing isn’t losing at all: Marilyn Monroe Estate acquires rights to Shaw Family Archives images
Interesting twist in the relations between parties once suing each other. Those who would cite Shaw as evidence that Marilyn Monroe “lost” would do well to consider subsequent developments since that ruling (a suspect ruling, no less, based on likely inaccuracies concerning the status of New York law in 1962, and where exactly Monroe was domiciled). Aside from the rights of Marilyn Monroe being acquired in a multi-million dollar transaction with a venture capital investment company (here’s a link to my write-up on that acquisition: http://rightofpublicity.com/marilyn-monroes-intellectual-property-rights-sold ), we now see that Marilyn Monroe’s “Estate” (as it is called in the Wall Street Journal article cited below) is saving the Shaw Family Archives from bankruptcy and lifting them out of its relationship with its long-time licensing agent, Bradford Licensing (a party also involved in the Monroe/Shaw litigation).
In exchange for a reported payout of $75,000, those in control of Marilyn Monroe’s rights are guaranteeing $3 million in earnings over the span of a five year deal. As a result, Marilyn Monroe’s “Estate” will have licensing control over the images. And to think, this goes right to the heart of the issues in that litigation years ago. Guess losing isn’t losing at all!
Here’s a link to the court filing addressing these details: http://www.scribd.com/doc/81621871/Shaw-Brad-Ford
And here’s a link to the Wall Street Journal’s reporting of the story, with more details concerning the situation: http://blogs.wsj.com/bankruptcy/2012/02/14/marilyn%E2%80%99s-moving-on/?mod=dist_smartbrief#
Thanks to a stipulated settlement read into the record on February 3, 2012 in a lawsuit brought by the Marlon Brando Estate against Ashley Furniture, we have a rare example of a publicly-disclosed settlement amount. Brando’s Estate is settling its claims against Ashley Furniture for $356,000, including an allocation for attorney’s fees. The dispute was over a furniture line designated as “Brando.”
There is a similar lawsuit still in process involving Humphrey Bogart and a “Bogart” couch offered by Ashley Furniture. In that case, Ashley Furniture reportedly argued that it “was not diluting a generic name” and sought a declaration that the Right of Publicity can’t be applied to the name of a couch.
I would agree with Ashley Furniture that they aren’t diluting a generic name, because neither Brando nor Bogart can be said to be generic names. Even without use of their first names, each name is clearly identifiable as Marlon Brando and Humphrey Bogart. When taken in context, with a Brando product next to a Bogart product, there really can be no reasonable argument that those names aren’t identifying Marlon Brando and Humphrey Bogart.
The idea that the Right of Publicity should somehow not apply to the name of a couch would be laughable if it wasn’t the kind of argument that seems to be increasingly employed by those caught infringing.
Here is a link to Eriq Gardner’s write-up in The Hollywood Reporter: http://www.hollywoodreporter.com/thr-esq/marlon-brando-ashley-furniture-lawsuit-couch-humphry-bogart-287389