Mayim Bialik CBD lawsuit
and here is a link to the Court’s grant of preliminary injunction and TRO: Florida court grants Mayim Bialik request for preliminary injunction and TRO
Without tackling the entirety of issues involved, it seems worth noting that the most recent coverage reports that the UK-based NFT company, Opulous, may be arguing California does not have jurisdiction over Lil Yachty’s suit for Opulous’ NFT offering and promotional activities related thereto utilizing Lil Yachty’s Right of Publicity and other rights and interests. The lawsuit alleges various violations and claims.
When analyzing the totality of a use, the final execution of the product involved (if a product-based offering) is not the entirety of the matter, as promotional efforts also must be considered, among other things. The value of an association with a celebrity or valuable Right of Publicity (in popular parlance, name image likeness) can accrue before any product is sold. NFTs, in particular, can generate repeat sales, and can sell for undetermined amounts based on the market response. The facts of the Lil Yachty lawsuit indicate that social media promotions, and funding for the defendant company, were aided by the promotion of the NFT in question.
It will be interesting to observe how the fact that defendants reportedly had communications with Lil Yachty in the planning stages for the NFT, then broke off negotiations yet proceeded with the use. That tends to be a strong fact, if accurate, in plaintiff’s favor in cases such as this.
If California does not have jurisdiction over this case, it may be a fair question whether defendant hermetically sealed its promotional efforts from California, not to mention how bids or potential sales from the jurisdiction in question were prevented. Of course, much depends on the specifics of a claim of this nature, what is established as factual, and related details.
Here is a link to Billboard’s coverage of the suit, which includes the complaint in question:
Lil Yachty lawsuit against Opulous, et. al., for unauthorized NFT activity
Thought everyone should know.
Just a quick note based on the Second Circuit’s recent ruling in Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, where it determined that Warhol’s Prince series was not transformative and therefore was subject to copyright provisions in relation to the reference photograph Warhol used. The court went through a fair use analysis, and the case was primarily concerning copyright, but it is interesting to contrast this decision with the Comedy III case, which was primarily Right of Publicity-related. In Comedy III, the Three Stooges artwork was held to not be sufficiently transformative, and the court used Warhol’s Blue Marilyn as the example of a work that would, in contrast, and in the court’s estimation, be sufficiently transformative. I’ll let those motivated to seek more run their own searches rather than post links here, as there is no lack of content, analysis and discussion being offered on this recent ruling. I have not, as yet, seen reference to the contrast with the Comedy III case, so I thought it may be useful to note it here.
Departing from the usual Halloween release date, Forbes issued its annual top-earning deceased celebrities list on Friday, November 13th in 2020. A few takeaways, in no particular order:
1. Unsurprisingly, given the worldwide pandemic, almost all the reported numbers are down. Some may have more immunity than others, and those that went up, like Dr. Seuss were bolstered by television, movie and media deals. Some of that may be one-time bursts.
2. Elvis Presley was closing in on a 50% decline. Graceland, as a tourist destination, no doubt accounts for much of that given closures in 2020.
3. Prince is down yet again another year further from his death, as has been the trend. The summary on Prince mentions only music sales.
4. Those with the misfortune of making 2019’s list due to early departure, XXXTentacion and Nipsey Hussle, are gone.
5. Those with the misfortune of making 2020’s list due to early departure include Kobe Bryant and Juice WRLD. It will be interesting to see if Kobe Bryant is a one-time, one-year entrant or will make next year’s list as well.
6. Not-much-of-a-prediction: Eddie Van Halen will be on next 2021’s list. Though he passed away over a month prior to the release of the 2020 list, that is neither enough time to account increased sales, nor enough time to process his passing into a list that was no doubt already well underway in October.
7. The article includes a statement about its methodology, which includes sources I use when appropriate in valuations.
Last, a word about the often used term “delebrity” in relation to deceased celebrities. I get it, though it’s never really hit me as particularly clever or useful as a term. More importantly, no one I know who actually works with the heirs, family, and estates of notable deceased icons uses this term. It’s hard to take someone seriously who uses this term in their scholarship, publications, or writings. But keep using it, those who do, because it provides a revealing tell.
Here is a link to Forbes’ 2020 list: https://www.forbes.com/sites/maddieberg/2020/11/13/the-highest-paid-dead-celebrities-of-2020/?sh=37a974e03b4b&utm_source=Licensing+International+Database&utm_campaign=b3b89e5adb-EMAIL_CAMPAIGN_2019_12_18_01_57_COPY_01&utm_medium=email&utm_term=0_ec0e484a60-b3b89e5adb-397655773&mc_cid=b3b89e5adb&mc_eid=a31363c945
Yes, there is a Right of Publicity interest pertaining to Supreme Court Justice Ruth Bader Ginsburg, who died a week ago at the age of 87. As always, application and analysis of her Right of Publicity would depend on context and specifics in any particular situation. But sticking to overview observations, since she was a lawyer, it may be a safe assumption that Justice Ginsburg had a testamentary plan in place. Since she was attuned to intellectual property matters, it is possible there were specific Right of Publicity provisions in her testamentary plan. Since she is commonly referred to as RBG, it is safe to assume RGB could unequivocally identify Justice Ruth Bader Ginsburg. And given the preceding points, it is safe to assume potential commercial uses or trademark activity could intersect with some of these points. This may all be academic, of course. We’ll see.
This isn’t strictly a Right of Publicity posting, but I can’t help commenting on Acura’s “Season of Reason” advertising campaign featuring chef Gordon Ramsay and singer Bette Midler. YouTube clip of Gordon Ramsay 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.