Yesterday brought an important decision from the Ninth Circuit concerning the constitutionality of Washington’s Right of Publicity statute. Overruling the lower district court’s determinations to the contrary, the Ninth Circuit has determined that Washington’s Right of Publicity statute is indeed constitutional as applied to the facts of the Hendrix case.
Here is a link to the ruling: 2014 Hendrix Ninth Circuit WA RoP constitutional
Earlier this week, the NCAA’s petition to the U.S. Supreme Court concerning the case of Keller v. Electronic Arts Inc., 724 F.3d 1268 (9th Cir. 2013) was denied. The author of http://www.RightofPublicity.com joined SAG in filing an amicus brief in that case at the lower court level, and the Ninth Circuit’s ruling and analysis were correct under the circumstances.
Electronic Arts, for its part, had already settled the case. The NCAA petitioned the Supreme Court to adopt the Rogers Test to determine use of the Right of Publicity of student athletes in video games and to overturn the determination that the use of the athletes in the video game was not protected by the First Amendment.
The Rogers Test was devised as an analysis for titles and would have been entirely wrong for the Keller case. It is surprising the Rogers test was even suggested, except perhaps it was believed that if adopted the result would be something the NCAA preferred.
The Ninth Circuit’s application of the Transformative Use test was the correct test for the use and issues in question. We don’t need the U.S. Supreme Court to assist in determining that a test devised for titles should not be used in a case like Keller.
An article in the January/February 2014 issue of The Atlantic entitled Jesse Willms, the Dark Lord of the Internet examines how one person has made a fortune from promoting products with deceptive or even fraudulent online advertisements. The article reports that the ads have included use of either the names or images of famous people.
The article talks about Oprah Winfrey and others who have filed lawsuits based on the fraudulent aspects of the ads, but I wonder if those lawsuits included Right of Publicity claims as well? Without examining the mechanics (jurisdiction, among other things), perhaps a meaningful damages award for a Right of Publicity infringement would serve as a bit of a deterrent?
Here’s a link to the online version of the article in The Atlantic: http://www.theatlantic.com/magazine/archive/2014/01/the-dark-lord-of-the-internet/355726/
File this in the “sad but true” category: even blatant intellectual property infringements can create a successful PR stunt. Apparently, the handful of people behind the virtual currency company calling itself “Coinye West” have refused to back down, though they apparently did drop “West” from the name.
As I teach in my Right of Publicity classes, context matters. Dropping West from the name at this stage does nothing to reduce liability, and really only confirms that the infringer knew the activity was an infringement in the first place. There also is that small detail of a rendering of Kanye West appearing on the “coin” itself.
I don’t normally take sides in these matters, and Kanye is himself no stranger to either controversy or PR manipulation; nevertheless, this kind of blatant infringement is the sort of thing that the Right of Publicity exists to address. Perhaps after a legal ruling comes down, the cost of the infringement will be massively more than the PR (or venture capital funding behind the company?) was worth.
We’ll see what happens next. Here’s a link to the letter sent by Kanye West’s attorneys: