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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. has already reported on this possibility at the following link:

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.

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

June 25, 2009 No Comments »
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Recently, the following question along the following lines was posed to me:  I was looking at Barack Obama bobbleheads and other merchandise and noticed that they are bad representations.  Was this done on purpose?  Is there a difference between actual pictures and artists representation?


Answer:  Through my work with bobblehead companies, I can say the better companies strive for accuracy.  That said, I can recall any number of times when the family of the clients I represented felt that the bobblehead 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.

Band names: Trademark or Right of Publicity Infringement?

June 25, 2009 No Comments »
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Recently, a question was posed to me along the lines of “I am aware of a website selling t-shirts that include the name of a band I represent. This company does not have permission. 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.  Some personalities are identifiable with their band name.  If the t-shirts include images of the band members, then conceivably, each band member could have a right of publicity claim as well as a trademark infringement claim.


MLB Cardinals Manager La Russa files suit over fake Twitter page

June 5, 2009 2 Comments »
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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?  Is there an obligation on Facebook or Twitter to prevent this kind of infringement?  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:

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