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. 

This dynamic, no doubt, is why there is quite a lot of licensing activity in the area of costumes, from superheroes like Batman and Spiderman, to movie franchises like Star Wars and Transformers, to Animal House, Avatar, Curious George, Friday the 13^th, Chuggington, WWE, Lady Gaga, Justin Bieber, and on and on. Simply put, they sell. When the product is licensed, no problem and all is well.

But from my experience over the years, costumes based on famous people are not always licensed. As I’m perusing the Halloween store’s products, almost immediately I happen upon two men’s costume wigs, side-by-side, one entitled “Family Jewels” and the other designated “The Billionaire.” Here is the picture I saw on the “Family Jewels” product packaging and on the website of the company producing the product:

http://rubies.com/landingpage.cfm?ItemNumber=51926#

And here is the image I saw on “The Billionaire” product packaging and on a secondary retailer’s website:

http://www.walmart.com/ip/The-Billionaire-Wig/17370817

This observation prompted me to check out the website of the company that produces these products. It is a leading costume retailer, authorized to produce and sell an impressive line licensed costumes, underscored by the fact that one of the main navigation tabs on the website is designated simply as “Licensed.” Their homepage loads with animated flash imagery of the KISS logo, images of the band, and the costume product line.

To find the “Family Jewels” wig though, I had to really search. It is there, in the mix of hundreds (if not thousands) of products, but not under “Licensed” and apparently not through any of the search key words one would expect (based on the various searches I attempted). On the product packaging itself, as well as the webpage entry for the “Family Jewels” product, I noticed that there is no use of Gene Simmons’ name, and the model wearing the wig does not resemble Gene Simmons (absent the effect of the wig itself which, after all, is meant to make a person look like Gene Simmons). When I scanned the product packaging in the retail store, I also saw no credit lines regarding the reality show, KISS, or Mr. Simmons.

This made me wonder: what would Gene Simmons do or say in response to a company that he had licensed which is simultaneously pushing a “Family Jewels” wig that, by every indication, is not licensed? (For purposes of this writing, I am assuming that the wigs are not licensed. To any of the parties directly involved in or affected by any of the products specified in this entry: correct me if I’m wrong and I will gladly set the record straight.)

Some will say, “Well, no reasonable person will think that this really IS Gene Simmons or Donald Trump pictured on the packaging.” This analysis confuses trademark standards with Right of Publicity analysis. The words “Family Jewels” by themselves are likely enforceable as a trademark, as the title of Simmons’ reality show, but I won’t get into trademark considerations here. For Right of Publicity purposes, there doesn’t have to be direct use of the person’s actual name or image. It’s really just a question of whether the person is identifiable.

I assume there is a written agreement governing the manner and terms by which the licensed KISS costumes can be produced by the licensee. In agreements I negotiate and draft for use of my Luminary Group clients, I typically protect against the scenario presented here (unlikely as it generally would be with a company that is securing a license from the personality in the first place). Through a well-drafted license agreement, a licensee would likely find themselves in quite a predicament by offering licensed goods on one hand, and on the other hand offering products that infringe the Licensor’s rights.

So let’s have some fun with this. In searching for the Gene Simmons and Donald Trump wigs, I found quite a few other examples. Who might “The Idol Judge” wig be identifying?

http://www.walmart.com/ip/Idol-Judge-Wig/17370818

How about “The Promoter” wig?

http://rubies.com/landingpage.cfm?ItemNumber=50786

Or the “Rocket Man” wig?

http://rubies.com/landingpage.cfm?ItemNumber=51446

I’m guessing you got a 100% on that pop quiz (depending perhaps on your age or familiarity with certain public figures). One does not have to believe that this actually is Gene Simmons, Donald Trump, Simon Cowell, Don King or Elton John for a violation of the Right of Publicity to take place. For each person you correctly identified, you probably also identified a potential Right of Publicity claim.

Let me offer a few more observations which might help illuminate how one goes about assessing a potential Right of Publicity violation:

· The product names make quite an effort to avoid use of the actual person’s name, while still craftily seizing upon a designation that confirms the intended person. Family Jewels? Check. The Idol Judge? Got it. Rocket Man? The title to one of Elton John’s iconic songs—10-4. I’d be inclined to say that rather than protecting the company behind these products from liability, these cagey but ultimately unambiguous names indicate a conscious effort to sidestep liability (and avoid licensing fees), potentially proving that the infringement is taking place on a knowing and intentional basis.

· The KISS storefront on this company’s website does not include the “Family Jewels” wig in the product lineup. The KISS collection, all things being equal, would be the most intuitive place to put the “Family Jewels” product. Grouping of products on a website, search words, tags and identifiers don’t happen by accident. Usually, inclusion is the guiding principle in grouping products and assigning key words and tags, so that a potential customer who wants to look like Gene Simmons will have no trouble finding the “Family Jewels” option. Of course, exclusion of these identifiers and tag words in all likelihood would be intentional as well. It doesn’t happen accidentally that certain products are emphasized, searchable and readily found, whereas others are buried.

I can’t help but notice that finding these products online was quite challenging, but in the retail environment where the idea for this entry was first inspired, it was not difficult at all. The “Family Jewels” and “The Billionaire” wigs were prominently displayed on prime retail shelf space. Of course, that retail store will be gone in just a few days, and a brick and mortar retail store is much harder for a licensor, brand owner, famous personality, or representative to monitor than a readily accessible, searchable, and archived website.

Maybe this is one reason why my clients tend to consider me good at what I do. I pay attention. In any event, I look forward to class discussion in my upcoming Right of Publicity law school class on the issues presented in this entry. I hope it has been educational and informative!

Michael Jackson is in the top spot again.  No surprise there.  The reported amount, however, is almost half the amount reported on last year’s list (here’s a link to my write-up on last year’s list:  http://rightofpublicity.com/every-halloween-brings-another-forbes-top-earning-dead-celebrities-list-and-usually-a-few-surprises ) Jackson’s earnings are claimed to be in the $170 million range over the last year, compared to $275 million last year. 

No one familiar with the list will be surprised that Elvis Presley once again took the number two slot.  Most of the entries are held by the perennials with only a modest rearranging of the slots each occupies.  In addition to Michael Jackson and Elvis, Charles Schultz, Rodgers and Hammerstein, Stieg Larsson, Theodor Geisel (Dr. Seuss), Jimi Hendrix, John Lennon, George Harrison, Steve McQueen and Albert Einstein all are back for encore performances.

But a few familiar names have fallen away compared to last year’s list.  J.R.R. Tolkien ( last year’s number 3), George Steinbrenner (last year’s number 9) and Aaron Spelling (last year’s number 13) did not make the list this year.  And, of course, there are a few new entries, assisted by the recent death of the person in question.

Elizabeth Taylor, who died in March, enters the list in her first year of eligibility, taking the fifth spot at $12 million, tying with John Lennon.  Her reported earnings are bolstered primarily by her long-running White Diamonds perfume. 

Reentering the list after a notable absence is Marilyn Monroe.  The entity that bought the rights to Marilyn Monroe, Authentic Brands, reports her earnings at $27 million.   Here’s a link to my write up on the acquisition of Marilyn Monroe’s rights:  http://rightofpublicity.com/marilyn-monroes-intellectual-property-rights-sold

The Forbes article accompanying this year’s list does a nice job illuminating the point that those deceased personalities with a music catalog as part of the intellectual property assets tend to have an advantage over those who don’t (http://www.forbes.com/sites/dorothypomerantz/2011/10/25/the-top-earning-dead-celebrities/ ).  Both Michael Jackson and Elvis Presley received the Cirque Du Soleil treatment, with their touring shows Michael Jackson:  The Immortal World Tour, and Viva Elvis both in rotation over the last year. 

A body of written or creative work, like J.R.R. Tolkien, Stieg Larsson or Theodor Geisel’s heirs possess, also serves as a substantial source of revenue for many on the annual list.  What is perhaps even more impressive is those personalities making the list who do not have these extra intellectual property elements or body of work from which to draw additional revenue.  Such is the power, and value, of the Right of Publicity. 

Devenanzio’s lawyer also represented Lindsay Lohan in Lohan’s lawsuit against E-Trade for its depiction of the milk-aholic baby referred to simply as “Lindsay.”  That claim has reportedly settled.  Here’s a link to my entry on that claim:   http://rightofpublicity.com/lindsay-lohan-and-the-etrade-milkaholic-baby

The Hollywood Reporter write up on Devenanzio’s claim is well-written and thorough, though it does seem to reveal a certain disdain for Devenanzio’s claim.  The claim is characterized as “remarkably vague,” and states that “it appears Devenanzio is not asserting any allegation of trademark infringement” but instead is claiming violation of “his publicity and privacy rights.”   I’m not sure why that in itself is inherently vague. 

I haven’t reviewed Devenanzio’s filings, or those of the Lindsay Lohan claim against E-Trade; however, alleging a trademark violation, or having Federally registered trademarks protecting a person’s namesake or some distinctive aspect of his or her identity, is not a prerequisite to filing a lawsuit when the claimant’s Right of Publicity has been commercially utilized.  This point is a hallmark of Right of Publicity analysis.  The Right of Publicity may share certain characteristics with trademark law, but they are not interchangeable.  Each protects different interests, have their own elements and standards, and have distinct policy rationales.

The write up further states that success in the lawsuit “may depend on whether he can find anything in discovery that shows [Defendants] had  Devenanzio in mind when they created the Johnny Bananas character.”   This is not the standard Devenansio has to meet, though.  For one thing, it may be impossible to find a “smoking gun” that demonstrates a clear link, or an intentional act, of naming the Entourage character after Devenanzio.  If such evidence can be found, so much  the better for Devenanzio’s claim and prospects for punitive damages. 

But a successful Right of Publicity does not require proof of intent to infringe.  What matters most is whether the claimant is identifiable from the portrayal.  Identifiability will be measured by viewers of the show and their determination or impressions, not those of the show’s creators or producers. 

It seems to me that Johnny Bananas is a fairly distinctive nickname.  One does not have to be identifiable on the level of a Michael Jordan, or George Clooney, or President Obama, either.  Instead, a viewer, or a potential jury as it were, can be presented information, context and imagery of Devenanzio’s Johnny Bananas and that of the Johnny Bananas in Entourage.  This may take the form of “aided identification” (as opposed to “unaided identification”), but this does not invalidate a potential Right of Publicity claim.  There might just be something to Devenanzio’s claim.

Here is a link to the Hollywood Reporter article:   http://www.hollywoodreporter.com/thr-esq/mtv-star-sues-hbo-johnny-244446

Just last month, it was announced that James Best, aka Rosco P. Coltrane of the Dukes of Hazard, filed a lawsuit alleging he may be owed as much as $25 million by Warner Bros.  According to his complaint, the contract Best had for his role in the 1980s TV show was specific about his entitlement to a share of merchandise royalties.  The complaint alleges that his contract entitled him to 5% of merchandising revenue from products that featured his identity, or 2.5% of total revenue for merchandise when other characters of the show were included.  Despite the contract provisions, he apparently hasn’t been receiving any such revenue, even though Dukes of Hazard licensing is an ongoing and successful endeavor for Warner Bros. http://www.hollywoodreporter.com/thr-esq/dukes-hazzard-sheriff-sues-warner-218089

Earlier this year, the cast of Happy Days filed a claim on similar grounds against CBS Studios and Paramount Pictures.  The Happy Days suit addresses home video releases as well as licensed merchandise featuring the actors’ images.  Apparently, the suit was precipitated by one of the actors seeing Happy Days slot machines in casinos (which may have been around the same time that I was involved in licensing various Gilligan’s Island case members for slot machines).  The lawsuit seeks at least $10 million in damages as well as attorney’s fees.  http://www.hollywoodreporter.com/thr-esq/happy-days-cast-sues-cbs-179852

Another recent claim has been brought by the bully in A Christmas Story.  The actor who played Scut Farkus claims that Warner Bros. has used his image without his consent in relation to products like action figures.  A Warner Bros. spokesman reportedly stated that the outfit of the character is the same as the character in the film, but that “the face of the character is not Mr. Ward’s.”  

This particular response is specious, at best.  For one thing, the limitations posed by the dimensions of the product and the manufacturing process make an exact manifestation of the actor’s likeness unlikely.  Further, the consumer arrives at the action figure with a built-in awareness of who the character is and what he or she looks like, regardless of the exact appearance of the product.  http://www.hollywoodreporter.com/thr-esq/why-christmas-story-child-actor-225440  

Much of these disputes might be resolved by a careful reading, or judicial interpretation, of the actors’ contracts.  As it pertains to Zack Ward’s claim against Warner Bros., he reportedly was originally contracted for a small part in A Christmas Story.  When he was given the prominent role of the bully, his contract was not adjusted or revised.  According to 23 No. 8 Westlaw Journal Entertainment Industry 11, as well as the pleadings in the complaint, Ward was therefore the only major character from A Christmas Story who did not contractually give away the right to license his likeness as manifest in the Farkus character.  

In my experience, the contracts being written in recent years for actors’ and actresses’ services are much more specific, and typically address the types of issues that were overlooked decades ago.  I believe this is due in part to a higher level of awareness of these issues in the legal profession (if not the acting profession), as well as the much more systematic licensing and merchandising campaigns that are built into TV shows and movies these days.

Even with a contract in place that endeavors to address ancillary issues like merchandising, problems will arise.  The actors who played Norm and Cliff on Cheers, George Wendt and John Ratzenberger, brought a claim over use of animatronic robots in Cheers-themed restaurants which delivered actual audio from the show.  While effort was made to circumvent the Right of Publicity by making the robots look somewhat different than Wendt and Ratzenberger (and what sense does that make, other than to try to sidestep liability?), there was no ambiguity as to who these robots were intended to represent.  The robots sat in the precise spot at the bar as the Norm and Cliff characters did in the show, and the voices of Wendt and Ratzenberger exchanging dialogue from actual Cheers episodes emanated from the robots.  The claim kicked around for a while before settling out of court, so the precedential value of the decision may be limited.  http://rightofpublicity.com/pdf/cases/wendt.pdf

In the early 1990s, Warner Bros. argued in a lawsuit against James Dean’s heir that it owned the Right of Publicity of James Dean altogether.  The contract for Dean’s acting services (for the three films of Dean’s short but mercurial career, East of Eden, Giant and Rebel Without A Cause) included a somewhat open-ended two-word clause which Warner Bros. interpreted as giving it ownership of Dean’s Right of Publicity.  The contract stated that Dean gave to Warner Bros. the right to photograph his “acts, poses, plays and appearances of any all kinds, and to produce and reproduce the same or any part of them by photography, printing, and all other methods, and to distribute and exploit the same in motion picture films, or otherwise.”  Those last two words, “or otherwise,” were the fulcrum point of Warner Bros.’ position.  Warner Bros. lost.  http://rightofpublicity.com/pdf/cases/warnerbros.pdf

The September 19, 2011 edition of Newsweek features an article by Carrie Fisher discussing Princess Leia licensing, entitled How George Lucas Stole Her Identity.  The tone of Fisher’s article is subdued, but one can read between the lines.  Fisher reports that she has teased Lucas over the years about how she sees her Princess Leia character on all manner of products, but that she never gets any share of the income.  Fisher says Lucas has never been apologetic about it.  Fisher’s essay even reports that there is a line of Princess Leia marijuana, though I doubt that is licensed by Lucasfilms, for obvious reasons.  Assuming it isn’t licensed by the Star Wars franchise, Fisher may have a viable right of publicity claim that could be asserted since the product does not come from Lucasfilms or tie in to her contract for the film.  http://www.thedailybeast.com/newsweek/2011/09/11/carrie-fisher-on-how-george-lucas-stole-her-identity.html

 Fisher closes by stating “Every so often, I wonder if Natalie Portman is getting more money than the none I’m getting. If she’s holding a check for Princess Amidala’s likeness in one hand and her Oscar in the other, that would piss me off.” 

I’m sorry to say it, Mrs. Fisher, but there is an overwhelming likelihood that she is.

Kobo is based in Toronto Canada, and the advertisement ran in the New York Times promoting Kobo’s electronic reading device.  The advertisement apparently did not use Ali’s image or any other elements of his persona.  The famous slogan, however, is a registered trademark.  The suit was filed in New York.

Missing from the reporting on this topic (and I have not yet seen the complaint itself) is the fact that use of this slogan also implicates Ali’s Right of Publicity.  To the extent that Ali is singularly and unequivocally identifiable by this phrase, a registered trademark likely would not be needed to support a claim based on Ali’s Right of Publicity.  Doesn’t hurt to have the registered trademark as well, though.  The slogan has been licensed to third parties, as is reportedly alleged in the complaint.

Here’s a link to the story:  http://www.businessweek.com/news/2011-07-14/muhammad-ali-company-sues-to-stop-kobo-use-of-butterfly-slogan.html