And here is a link to the complaint itself:  http://www.hollywoodreporter.com/sites/default/files/custom/Documents/Compliant_Clooney.pdf

For immediate release: April 19, 2012

Adjunct Professor Helps Preserve Indiana’s Right of Publicity Law

Indianapolis, IN— Now that House Enrolled Act 1258 has been signed into law by Governor Mitch Daniels, Indiana has preserved the spirit and intent behind Indiana’s Right of Publicity law and maintained its position as a leader in Right of Publicity recognition, according to Jonathan Faber, founder and CEO of Luminary Group. Luminary Group is a licensing and intellectual property management company that represents icons such as Babe Ruth, Vince Lombardi, and Jesse Owens.

Faber, a 1999 graduate of Indiana University Robert H. McKinney School of Law, authored, testified in support of, and defended HEA 1258. He teaches “The Right of Publicity” at the law school and also is an intellectual property attorney with McNeely Stephenson Thopy & Harrold in Shelbyville, Ind.

“Indiana’s Right of Publicity law was enacted in 1994 on the strength of testimony from James Dean’s family and Ryan White’s mother,” said Faber. “Since then, it was widely understood that Indiana’s law would protect the rights of those who died before 1994, since the rights existed at common law and the statute simply codified those rights.” Nevertheless, a 2011 non-binding judicial ruling in Indiana last year concerning use of John Dillinger in a video game threw this into question.

Opposing Faber’s bill was the Motion Picture Association of America. “The MPAA treated this as an opportunity to overhaul Indiana’s entire statute, but the underlying statute was not under review and is entitled to a presumption of validity,” Faber said. “Indiana’s statute already has language that addresses the MPAA’s concerns.”

The Right of Publicity refers to the right of a person to control the commercial use of his or her identity. “Most states correctly view this as a property right, and it therefore survives the death of the individual,” Faber said. “The concern with HEA 1258 is confirming how this intellectual property right is handled after a personality dies.”

Faber is the creator of the online Right of Publicity resource, www.RightOfPublicity.com. He also teaches “Licensing Intellectual Property” at the IU Maurer School of Law.

Faber has served as an expert witness in cases involving Uma Thurman, Motley Crue founding member Nikki Sixx, the animated character Madeline, and NASCAR driver Robby Gordon. In fall 2011, Faber testified in support of Zooey Deschanel in her claim against Kohl’s Department stores and designer Steven Madden. Earlier this month, Faber and Luminary Group performed a valuation of Indiana native coach John Wooden’s estate.

To reach Faber for interviews and additional comments, call 317-428-5441.

About Indiana University Robert H. McKinney School of Law

With an enrollment of more than 1,000 students, IU McKinney School of Law is the largest law school in the state of Indiana.  Occupying a spacious, new, technologically advanced building, the school is located in the heart of downtown Indianapolis, Indiana.  The school has enjoyed great success for more than 100 years in preparing students for legal careers.  The success of the school is evidenced by the prominent positions graduates have obtained in the judiciary and other branches of government, business, positions of civic leadership, and law practice. The school’s 10,000 alumni are located in every state in the nation and several foreign countries.  More information about the law school is available at indylaw.indiana.edu.

For more information, contact:

Elizabeth Allington
Director of Communications and Creative Services
Indiana University Robert H. McKinney School of Law
Lawrence W. Inlow Hall
530 West New York Street
Indianapolis, IN  46204
Tel. 317-278-3038
Fax. 317-278-4790
e-mail: eallingt@iupui.edu
web: indylaw.indiana.edu

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 the RC3 lawsuit against Justin Bieber:  http://www.scribd.com/fullscreen/83005465 Joustin\’ Beaver declaratory action

Here is a link to Eriq Gardner’s write-up in The Hollywood Reporter.

http://www.hollywoodreporter.com/thr-esq/justin-bieber-sued-joustin-beaver-video-game-295548

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#

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

I hate to break it to them, but if an activity is prohibited by law, the fact that the offending company is already in production would provide no defense or entitlement to proceed.  This Steve Jobs action figure is exactly the kind of unauthorized commercial product that the Right of Publicity is designed to address, if not prevent.

Cheung reportedly stated “Steve Jobs is not an actor, he’s just a celebrity,” and that “[t]here is no copyright protection for a normal person.”   Aside from the various legal errors in that comment, I can’t help thinking that this line of thought is exactly what gets companies sued for Right of Publicity violations.

Here is a link to the MSNBC article containing Cheung’s quotes and reporting many more details on this story: http://technolog.msnbc.msn.com/_news/2012/01/05/9972437-apple-tries-to-ban-realistic-steve-jobs-action-figure

The MSNBC article states that Apple claims to own the post-mortem rights to Steve Jobs’ name, image and likeness, as manifest by the In Icons action figure.  I do not know whether or not Apple has affirmatively made that assertion or if that is an assumption being drawn from the fact that Apple issued the cease and desist letter.  All things being equal, I would have assumed that Steve Jobs’ family would be the beneficiary of Steve Jobs’ Right of Publicity.  Perhaps Apple does in fact have an ownership interest in Steve Jobs’ Right of Publicity.  The Right of Publicity is assignable during life or at death through testamentary documents or intestate succession.  The Right of Publicity is also divisible in whole or in part, meaning that several owners could own varying percentages of his Right of Publicity.  Alternatively, perhaps Apple is simply handling administrative duties such as protecting against unauthorized use of Steve Jobs’ Right of Publicity.  Presumably, Apple’s legal advisors and Steve Jobs’ family and heirs have already addressed this crucial point.

In researching this story, I also came across another write-up about the Steve Jobs action figure on Paidcontent.org entitled “Steve Jobs Doll Legal In Most States, Not Indiana” which can be accessed here:  http://paidcontent.org/article/419-steve-jobs-doll-legal-in-most-states-not-indiana/

This article seems to conclude that the Steve Jobs action figure is only actionable in those states with a statutory Right of Publicity in place.  The article ends by listing those states with a statutory Right of Publicity but does not include California, which is a fairly important jurisdiction for Right of Publicity matters.  California, in 2008, passed legislation confirming that the Right of Publicity does apply to those persons who died prior to passage of the statute.  Here’s a link to the amended language:  http://rightofpublicity.com/statutes/california-2008-amendment-to-33441

This amendment, signed into law by Governor Schwarzenegger, was in response to a California ruling that concluded that Marilyn Monroe was not entitled to statutory Right of Publicity protection under California law, because of the perceived location of, and law of, her domicile at the time that she died in 1956.  California’s 2008 bill was in fact just a clarification that the law indeed always was supposed to apply to those who predeceased passage of the statute.

Right of Publicity litigation usually involves application of the Single Publication Rule, which in general terms allows a claimant to address the totality of the infringement through one cause of action.  In the absence of such procedural efficiency, a claimant might be forced to go state by state, litigating the same basic nucleus of facts, against the same parties, over only those activities that took place in that particular state.  If courts are overburdened now, which they generally are, just imagine the inefficiency and backlog that such an approach would generate.

Thankfully, this is not how Right of Publicity litigation is typically conducted.

As for Steve Jobs and whomever is the appropriate party to assert a claim for violation of his Right of Publicity, I am confident that the law would back them up if they have to litigate in response to a Steve Jobs action figure.  If not, one would have to wonder why the Right of Publicity exists in the first place.

Benetton's altered picture of President Obama kissing Chinese President Hu Jintao

Benetton euphemistically calls it “an invitation” to “combat the culture of hatred.”  (Dear Benetton: whose hatred, exactly?) I call it an advertisement.

While I don’t begrudge message-based advertising or calling attention to things like charitable fundraising or humanitarian efforts, I find campaigns like this to be little more than a transparent publicity stunt designed only to stir up controversy and get extra publicity for Benetton.  I suppose I am obliging them by writing about it, but perhaps raising the specter of liability for the advertisement offsets that transgression.

All of this reminds me of a post I wrote about PETA’s advertising antics:  http://rightofpublicity.com/peta-launches-new-ad-featuring-michelle-obama-without-first-ladys-permission

The White House issued the following statement in response to Benetton’s ad:  “The White House has a longstanding policy disapproving of the use of the president’s name and likeness for commercial purposes.”  Sounds like someone at the White House may have a functional awareness of the Right of Publicity.

Here’s a link to more details on the advertising campaign:  http://digitaljournal.com/article/314625

Benetton’s advertisement would make a good Right of Publicity exam question.

What do you think?

YouTube clip of Bette Midler in Acura Season of Reason ad

The spots are entertaining and I have no issue with the performances in the advertisements, but doesn’t the message of the ad contradict itself?  After chef Ramsay berates a kitchen team in his signature manner, or Bette Midler steals the show by caroling on a neighborhood doorstep, the narrator chimes in with “At a time when it’s easy to go overboard, Acura invites you to be smarter…” (…and buy an Acura either as a gift or for yourself).

If hiring chef Gordon Ramsay to cook your holiday dinner, or having Bette Midler go caroling with you denotes “going overboard,” how exactly is buying a $50,000 (0r more) luxury automobile for yourself, or as a gift, not “going overboard?”  Doesn’t it, in fact, demonstrate the very behavior being disclaimed?

(Anyone planning to give me an Acura as a gift, forget I said that–I won’t consider it going overboard.)

Congratulations to chef Gordon Ramsay and singer Bette Midler for landing their respective spots in Acura’s campaign.  I have no doubt that they each did quite well with those campaigns.  As an aside, I’m reminded of when my company was representing a top-name NBA superstar, who preferred to receive  product rather than money (he didn’t need the money).  That leads to some interesting negotiations.  As an agent, how do you receive a commission on, say, a luxury automobile?  Claim the muffler?

I suppose another takeaway from the Acura advertisements is that Bette Midler is now a bit more receptive to advertising, compared to her position as detailed in her famous 1988 Right of Publicity case against Ford Motor Company.  Here’s a link to that case:  http://rightofpublicity.com/pdf/cases/midler.pdf  Bette Midler v. Ford

Of course, things are very different these days.  The previous implications of the actor or actress not being able to find better work have all but evaporated.  The pay is pretty good, too.

The idea, as described by David Fischer at Advertising Week in October, is fairly simple and “doesn”t look that interesting” as Fischer stated in his presentation.  Basically, when a Facebook user “likes” a company or product on Facebook, Facebook will insert a line of text into an advertisement on the side of the screen stating “[Your Friend"s Name] likes [this product, movie, company, etc.],” with an image of your friend next to the text in the advertisement.

Downplaying how “interesting” it is may be as clever as the advertising itself.  We all know that traditional advertising is often overlooked, ignored, and tuned-out by consumers.  Part of the appeal in Facebook”s more discrete advertising mechanism, then, is that it doesn”t quite look like typical advertising, as Fischer”s comments imply.  Even more importantly, as Forbes” Robert Hof reports in his recent Forbes.com article, “People are twice as likely to remember an ad if their friend is in it, according to the Nielsen Co., and they tend to click on it or share it with friends.”  Here is a link to Robert Hof”s Forbes.com article in which he examines the business considerations of Facebook”s advertising ambitions:  http://www.forbes.com/sites/roberthof/2011/11/16/facebooks-new-advertising-model-you/

Sounds like an effective method of target advertising, with your friends” image and a statement that he or she likes the advertised company, right?  A resounding endorsement from a trusted source! 

What appears to be overlooked in all of this are the Right of Publicity implications.  In typical Right of Publicity analysis, if a person”s name, image or likeness is used without permission in a commercial manner such as advertising, then an infringement probably has occurred.  Furthermore, by communicating that “[your friend"s name] likes this company,” potential false endorsement overtones may also emerge.

Facebook has flirted with this advertising model before.  I recall a vigorous discussion in my Right of Publicity class at Indiana University School of Law – Indianapolis a few years ago discussing a similar Facebook advertising plan, though my recollection is that Facebook aborted the plan very quickly.  At the time, I thought it might have been because of the very issues touched upon here.  Apparently not since the plans seem to be reemerging.  I”m not sure there”s much difference, at least legally speaking, between the prior iteration and the one that is being contemplated now by Facebook.

Facebook might be relying on their existing user agreement, or may be intending to roll out a new user agreement which most people admit to not reading, in order to secure what Facebook might describe as “permission.”  I”m not so sure that would be enforceable, though, as a basis to purposefully and proactively utilize a person”s Right of Publicity in conjunction with third-party companies. 

Right of Publicity agreements to use a person in a commercial manner such as advertising typically involve specific contractual terms governing the use.  I question whether a unilateral, non-negotiated, mandatory click-through agreement can substitute for a license to commercialize a person”s Right of Publicity. 

Facebook could be starting a Right of Publicity firestorm.  In light of Facebook”s “Expanded Premium Ad” scheme, I suppose a Facebook user would be well-advised not to “Like” anything on Facebook unless you”re okay with that one unassuming click constituting a Right of Publicity and endorsement agreement for Facebook and that company to use your name, image and likeness in advertising any way that it sees fit. 

If you happen to be a famous athlete, actor or actress, musician using Facebook, the perils only increase.  Consider just one scenario that comes to mind:  imagine if a musician, Johnny Rockstar, under contract for the endorsement of a specific guitar manufacturer (company A), casually “likes” a company that makes all kinds of other gear (company B), but also happens to sell a competing line of guitars.  Is that musician in breach of contract for “liking” a company that makes a guitar string or other accessory he likes, once Facebook launches its “Expanded Premium Ad” and runs advertisements with his picture next to his declaration that “Johnny Rockstar likes Company B?”  Think it couldn”t happen?

But one doesn”t have to be famous for this new Facebook “Expanded Premium Ad” to implicate the average Facebook user”s Right of Publicity.  The prevailing view, barring other factors, is that every person possesses a Right of Publicity.  The reality is that a private citizen usually doesn”t extract much value from his or her Right of Publicity because companies and advertisers generally only seek out, and pay for, associations with widely-recognized personalities (i.e., celebrities, athletes, etc.).  This new Facebook advertising scheme turns that dynamic on its head, because now basically every Facebook user will be sought out and included into advertising campaigns.

It will be interesting to see how this issue develops.