No Doubt wins claim against video game publisher Activision: claim is not barred by the First Amendment and the use in the video game violates band members’ right of publicity

The band No Doubt has secured a significant ruling against video game publisher Activision.  The ruling also appears to send a clear message to the video game industry that video games are indeed commercial products, are not entitled to right of publicity exemptions, and are not to be afforded special First Amendment treatment.

Video games would seem to be a prime example of why the right of publicity exists in the first place.  Nevermind the long-standing course of conduct whereby video game companies  routinely have secured permission and licensed the use of third-party intellectual property in its games; if a video game is not a commercial product, and is exempt from right of publicity liability when a person is included in the game’s content and programming, one would have to wonder why the right of publicity exists at all.  This ruling gives some assurance that the video game industry is not going to secure the sweeping shield from right of publicity compliance that it has been seeking.

No Doubt licensed Activision for inclusion in its popular Rock Band video game subject to specific limitations in the license agreement.  The use of the band went beyond the contractual allowances, and allowed users to unlock features and manipulate the No Doubt avatars into performing songs that were not approved by the band, among other things.

It would seem like this claim was really just a contract dispute at its core.  If the contract precisely defined how the band could be included in the video game, then anything that goes beyond those parameters would seem to exceed, and thus breach, the license agreement.

Activision asserted that No Doubt’s claim was barred by the First Amendment, and that the use was sufficiently transformative (under the Comedy III decision) and therefore not a violation of the band members’ right of publicity.  The Court disagreed, and added that the band did not need to show that the use was “explicitly misleading” in order to support its unfair competition claim.

The video game industry would like to believe that its commercial products should be exempt under right of publicity legislation, receiving the same treatment as books or news reporting.  This ruling, at least, would seem to indicate that the Courts aren’t buying the video game industry’s view.

Here is a link to the ruling:  http://www.courtinfo.ca.gov/opinions/documents/B223996.PDF

ABA Journal interview with RightOfPublicity.com author Jonathan Faber examines the right of publicity in detail

A recent cover story in the ABA Journal includes an interview with RightOfPublicity.com author, and examines the right of publicity in detail.  Here is a link to the story entitled “What’s In A Name?”

http://www.abajournal.com/magazine/article/whats_in_a_name/

Albert Einstein’s heir is “outraged” that she doesn’t receive part of Albert Einstein licensing income

Evelyn Einstein, the 69 year old granddaughter of the famed physicist Albert Einstein, says she is “outraged” that she doesn’t get paid a part of the income derivived from the licensing of Einstein’s name, image and likeness.  That Einstein yields substantial revenues is no secret–he is a perennial entry on Forbes’ annual Top-Earning Deceased Celebrities list–but the legal basis for Evelyn’s claim to entitlement seems to be a mystery.

I’ve heard it before many times:  “But I’m a blood relative!” goes the rally cry.  Of course, this has little to do with the distribution of assets and rights through a will or trust.  The next declaration is usually “I need the money” or “It’s not fair.”   Perhaps, but most people are familiar with this in the context of estate administration.  The wealthy uncle leaves his assets to a favorite relative and leaves others out for whatever reason (or no reason at all).  The result can be harsh to those who are left without a share, but the law by necessity tolerates and supports such results.

I had the opportunity to travel to Jerusalem and meet with those responsible for administering Einstein’s licensing program.  The distribution of Einstein’s intellectual property rights is clear from his testamentary documents.  The Hebrew University of Jerusalem was chosen by Einstein to receive not only his literary rights but also the intellectual property rights to his name, image and likeness.

Whether or not Einstein could have envisioned the business that stems from licensing of uses such as “Baby Einstein” or Einstein lookalikes in commercials is irrelevant.  Einstein made his choice and entrusted his literary and intellectual property rights to the University, which for its part is doing a diligent job in being selective in what merchandising and advertising of Einstein is allowed.

Einstein died in 1955.  It has been 56 years since Einstein’s asset distribution took effect.  Evelyn’s claim might be a bit late at this point.

Here’s a link to the story:  http://www.cnn.com/2011/US/02/10/california.einstein.granddaughter/index.html?hpt=T2

Billboard Magazine cover story on Bob Marley Estate quotes RightOfPublicity.com author Jonathan Faber

Billboard Magazine’s cover story for the newest issue examines the business of Bob Marley not only during his lifetime but also in the decades since his passing.  The piece gives a lot of fascinating insight into the challenges Marley’s family has faced over the years, detailing various lawsuits that have been fought as well as the continuing opportunities that exist for licensing Bob Marley’s music as well as his name and image.

I spoke with the writer of the Billboard cover story and I am quoted in several places throughout the article.  One of the things we discussed in detail is the right of publicity, and how it can be a tough undertaking to protect the legacy of a beloved figure like Marley.  What to do in the face of unauthorized uses like advertisements and merchandise?  Don’t file a lawsuit and the market responds with even more infringements on the basis that the rights are not being asserted.  File a lawsuit, and risk being labeled litigious.

It’s easy to assume that it would be a “nice problem to have,” and maybe there’s some truth to that.  But I also bet that if the average observer who is critical of a family or heir protecting their loved one’s legacy through legal action was in the same position, that person would quite likely do exactly the same thing after witnessing unauthorized (and often undesirable) uses cascade through the marketplace.  What’s that they say about “walk a mile in another man’s shoes…?”

Here is a link to the Billboard story:  http://www.billboard.com/#/features/the-business-of-bob-marley-billboard-cover-1005022242.story?page=1