Paul Newman’s daughters secure temporary injunction against Wet Brush license

The daughters of late actor Paul Newman secured a temporary injunction against Wet Brush hairbrush inspired by Paul Newman. Here is a link with more details: Paul Newman’s daughters secure injunction against Wet Brush and use of Newman’s Right of Publicity on non-food products It appears the product was licensed by Newman’s Own Foundation, so the dispute may be more involved than a traditional unauthorized use. Here is a link to the product announcement: Wet Brush inspired by Paul Newman
It also appears that a Connecticut action was filed by Newman’s daughters against the Foundation, in relation to operational decisions or criteria that may have been in place to govern or limit the kinds of products Paul Newman intended to allow. Here is a link with more information to the 2022 action: Paul Newman’s daughters file action against Newman’s Own Foundation
It is not clear the degree to which the latest news and the prior action are connected. Paul Newman was an advocate for Right of Publicity recognition and testified in support of a Connecticut legislative effort to enact a Connecticut Right of Publicity law, and expressed concerns about technology allowing digital creations without the involvement of the person in question.

ELVIS Act amends Tennessee Right of Publicity law with AI provisions

Tennessee’s Right of Publicity statute has been amended to provide broader provisions against artificial intelligence. Specifically, the amendment fortifies the concept of voice and the vulnerabilities AI could take advantage of if left unchecked.

Here is a link to the amendment: Tennessee ELVIS Act amendment

And here is a link to the Recording Academy’s announcement:
Recording Academy ELVIS Act announcement

Cetaphil Super Bowl LVIII commercial fair use of Taylor Swift?

Super Bowl advertising is fertile ground for Right of Publicity licensing. My company more often than not will have a campaign using one of my clients. Inevitably, then, there could also be instances of advertising which wanders into the realm of a Right of Publicity infringement.

Without saying I believe it is or is not an infringement, or whether it was authorized or not, there is no denying who the Cetaphil advertisement of a father and daughter bonding over friendship bracelets and football jerseys was connecting to the surge of attention brought by Taylor Swift dating Kansas City Chiefs tight end Travis Kelce in the 2023 season. My Right of Publicity class will use this spot for discussion of Right of Publicity analysis.

In the Cetaphil advertising spot, no reference to the Super Bowl or the Kansas City Chiefs is made directly; however, several football jerseys are depicted, one in a red-based color, another in an away-uniform white-based color. They are otherwise unmarked jerseys, but at least arguably are capable of being viewed as Kansas City Chiefs jerseys. The timing of the spot occurs during the “big game,” and perhaps the viewer is expected to arrive with a built-in familiarity of one of the teams in the game and to Taylor Swift and her circumstantial but heavily-publicized connection to the Kansas City Chiefs.

So with respect to Taylor Swift and the Right of Publicity, would it be actionable? Throughout the spot, the father and daughter seem not to be connected as each looks at their phones or have seemingly disparate interests. The numbers on the jerseys in the spot are 89 and 13, both of which need no explanation to Swifties or the Taylor Swift fanbase, as those numbers are immediately recognizable as connected to Swift (arguably even more so when used together). Numerous close-ups of friendship bracelets culminate in both the father and daughter wearing both friendship bracelets, and both wearing football jerseys in the Kansas City Chiefs colors, numbered 89 and 13. The father-daughter disconnect is remedied as the father wears friendship bracelets like his daughter, the daughter wears a jersey like her father, and they both sit down in front of the television presumably to watch the “game.”

Do these references require a built-in awareness of the storylines dominating the 2023 season and the 2024 Super Bowl? To be clear, no NFL or Kansas City Chiefs trademarks are directly depicted, nor is Taylor Swift named or directly portrayed. Do these details render the spot clear of violations? Again, I am not giving an assessment, just raising the question, and from one of the following links, I am not the first to ask the question.

Here is one link to the spot, which posting is captioned “Taylor Swift Cetaphil commercial:” Cetaphil 2024 Super Bowl commercial

Here is a link to one write up that references the dynamics in play, and also considers whether fair use would provide safe harbor. Cetaphil’s Marketing Tactics balance Taylor Swift Imagery and IP Rights

The standard for infringement is identifiability, perhaps qualified by the association being unequivocal (“unequivocal identifiability”). It is probably safe to say that Taylor Swift, and only Taylor Swift, is unequivocally identifiable from the advertisement. Are the interests of fair use served by an advertisement like this being deemed permissible? To be clear, it has not been “deemed permissible” nor to my knowledge has any action been taken against it. It may remain theoretical, but context matters in Right of Publicity analysis. Given the attention on the Travis Kelce-Taylor Swift relationship throughout the 2023 NFL season, culminating in the Kansas City Chiefs reaching Super Bowl LVIII, and Taylor Swift being shown several times in any game she attended, then the context may dictate that further identification of Taylor Swift, the Kansas City Chiefs, or the Super Bowl were unnecessary because the context of the use removed any uncertainty. Should it have been licensed? Should it be fair use?

Two disturbing AI situations involving the Right of Publicity of George Carlin and Taylor Swift

I would hope that both of the stories breaking yesterday, one involving George Carlin’s estate and the other involving Taylor Swift, would find universal support in favor of the Right of Publicity.

Carlin: George Carlin estate sues over AI comedy special

Taylor Swift: Taylor Swift and AI images

Bijan Mustardson illustrates Right of Publicity (NIL) in action

In what may be a contender in the “most clever” licensing event of recent times, the running back for Texas, Bijan Robinson, is involved in a mustard line launch entitled “Bijon Mustardson.” It is, quite obviously, a dijon mustard. Also, quite obviously, this “NIL deal” is more properly understood as a Right of Publicity matter, though admittedly involving a collegiate athlete. We’ll let semantics have a rest and simply enjoy when the licensing deals practically write themselves. Here’s a link to more info:

Bijan Mustardson” rel=”noopener” target=”_blank”>Bijan

Very brief excerpt of House of Gucci dialogue regarding infringements

Lady Gaga: Patrizia
Adam Driver: Maurizio
Al Pacino: Aldo

Patrizia: Who is making this stuff? Who’s allowing this to happen?
Maurizio: As far as fakes go, they’re pretty good. I mean, I’d, I’d buy them.
Patrizia: Don’t be such a cretin.
Maurizio: Don’t call me a cretin, sweetie.
Patrizia: That’s not what I said. I asked you not to be one. This is serious. And you’re laughing it off.
Maurizio: At least it’s my name on the marks, not yours.
Patrizia: Our name. Sweet Pea. On junk.
Aldo: They’re not fake, by the way. They’re replicas.
Patrizia: I was just very, very surprised.
Aldo: Well, you know what else would surprise you? How profitable this stuff is.
Patrizia: What about quality? Sacred cows?
Aldo: Quality is for the rich. If a Long Island housewife wants to live with the illusion that she is a Gucci customer, why not? Let her.
Patrizia: Because it…damages Gucci’s credibility
Aldo: Patrizia…this is us. This is not a girl’s game.
Maurizio: Yeah but Aldo, she’s right. This stuff is, is junk. It’s not what Gucci is.
Aldo: Gucci is what I say it is.

Mayim Bialik files suit against various defendants in response to unauthorized CBD advertisements

https://www.kiro7.com/news/trending/mayim-bialik-sues-groups-over-false-cbd-endorsement-ads-florida-court/QBCXXDSGJ5E6PGUXZZ5BISVM2A/
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

Note regarding Lil Yachty lawsuit against Opulous for NFT offering

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

US Supreme Court to consider Andy Warhol’s Prince Series in relation to copyright fair use and transformative test

You can find information concerning the dispute between the Andy Warhol Foundation (AWF) and photographer Lynn Goldsmith elsewhere, such as the factual underpinnings, lower court rulings on the case to date, and the arguments on either side easily enough in other place. Given the recent acceptance of a writ of certiorari by the United States Supreme Court (SCOTUS), I will simply note a few details that could be interesting to watch from a Right of Publicity perspective.

First, it is interesting to consider that in Comedy III, the court specifically cited Warhol’s Marilyn as the example of a transformative work, in crafting and applying its transformative use test to the Right of Publicity. Often lost in discussion of the case and reference thereto, the rightsowners of the Three Stooges (Comedy III) won the case on Right of Publicity grounds in relation to the commercial activities that had occurred in relation to a charcoal sketch of the Three Stooges by the defendant. The original work of art itself was not really the issue, but rather, the activities connected to that work were found to constitute a Right of Publicity violation. The Judge carefully articulated a test for deciding such situations, thus advancing the transformative use test for Right of Publicity purposes.

In the Warhol dispute concerning Lynn Goldsmith’s Prince photograph, the issue is of a copyright nature. Still, it is interesting that in a notable prior case (Comedy III), Warhol’s Marilyn was cited as the example of a transformative use. Now, in the AWF / Goldsmith matter the very question of whether Warhol’s rendering of Prince is transformative takes center stage.

Second, in teaching Comedy III this semester after news of SCOTUS accepting AWF’s petition, a question was raised whether Warhol perhaps used a reference photo in creating his Marilyn work. The inquiry is intriguing, though perhaps only for academic reasons. Without knowing the specifics, it seems plausible that if Warhol used a reference work for creation of his Prince work, it is possible he did the same for creation of his Marilyn work. The implications, if so, can be considered elsewhere.

Third, it is important to note that the AWF Goldsmith matter to be decided by SCOTUS, with a decision expected sometime in 2023, ought to be confined to a copyright decision. Any Right of Publicity involved would be that of Prince, and it is assumed that the rightsowners of Prince’s publicity rights are not part of the matter. SCOTUS is good at keeping the issues it is considering confined to only that which is in front of the Court at that time. In other words, no matter what SCOTUS decides in the AWF Goldsmith matter, it is expected to be a copyright decision only.

Last, and despite the observation in the preceding paragraph, certain Right of Publicity tests and analytical constructs often borrow from the copyright realm. If the transformative use test happens to be recast or adjusted by SCOTUS, it would not be surprising to see future holdings considering the Right of Publicity in relation to a Comedy III-type transformative use test take into account what the Supreme Court finds in the Warhol Goldsmith matter concerning Warhol’s Prince series.

“Public Domain” understanding

An image that can be found in an image provider’s database marked “public domain” does not make it so. Obviously, the recent B.J. Novak odyssey illustrates how far things can go sometimes, but that does not mean his image actually was public domain, that ad agencies and companies were free to use his image on products or in advertising, or that he was without recourse (though he has indicated not being inclined to pursue the end-users). The term “public domain” (like many aspects of intellectual property) gets misused often. The headline of a recent article “How your photo could end up in the public domain – and used in ads around the world” takes a substantial leap and demonstrates the point, though the substance of the article may be helpful.

How photos end up in the public domain – and used in ads around the world

Public Service Announcement: NIL = RoP

Thought everyone should know.

Andy Warhol’s Prince series not transformative; Andy Warhol’s Blue Marilyn transformative?

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.

A few thoughts on Forbes’ annual top-earning dead celebrities list

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

RBG and ROP (Right of Publicity and Ruth Bader Ginsburg)

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.

Is it okay for Antonio Brown to release a song called “Andrew Luck?”

Sorry to disappoint anyone expecting this blog entry’s title to be answered here, but for a number of reasons, it isn’t. The question can certainly be raised though. Former Steelers, Raiders and Patriots wide received Antonio Brown has released a song or track entitled “Andrew Luck,” which opens with audio from Andrew Luck’s press conference announcing his retirement, and including a repeated refrain with the lyrics:

I got the game and I’m not on stuck
I’m out the way like Andrew Luck
Everybody callin’ my phone, shut up

A while back, Outkast released a song called Rosa Parks. Litigation ensued and Parks won. In short, the song wasn’t about Rosa Parks and the title was deemed a violation of Rosa Parks’ rights. Paraphrasing, a great line from that decision was that “crying artist does not confer carte blanche” to use a person’s name in a way that does not relate to the song, but which certainly serves to bring attention to the track.

There are various other examples. Logic released a song called “Keanu Reeves” which, interestingly and perhaps significantly, does not actually even reference Reeves. Instead, the connection, such as it is, refers to “the one” like Keanu Reeves, which of course is a reference to Reeves’ character Neo in the Matrix film franchise.

The legal test that likely applies best to these facts is the Rogers test, from litigation brought by Ginger Rogers in response a film named “Fred and Ginger.” Rogers lost the claim on the basis that the title was relevant to the film’s title and not simply a ploy to attract attention from Rogers’ name. Conversely, the same test was applied to Outkast’s release of a track called “Rosa Parks.” The lyrics were not about Rosa Parks, and it was determined to be a violation of Parks’ rights and an effort simply to attract attention to the song.

So I’ll leave it to you to decide if Brown’s song “Andrew Luck” is fair, appropriate or permissible, or if it fails the Rodgers test as Outkast’s song did a while back. I expect we’ll never really have this question answered, but it is an interesting reference point to consider in any event.

Here’s a link to the video and a recent interview with Antonio Brown:  Antonio Brown releases track named Andrew Luck

Jason Mraz lawsuit illustrates important takeaways

The lawsuit filed by Jason Mraz against MillerCoors, filed December 4, 2019 illustrates various important points and takeaways.  View the complaint here:  Jason Mraz v. MillerCoors complaint

Reportedly, MillerCoors was a sponsor of the 2019 BeachLife Festival in California where Jason Mraz performed.  His performance of course included one of his hit songs, I’m Yours.  The complaint alleges that MillerCoors posted an advertisement on Instagram for Coors.  The advertisement includes a clip of Mraz performing the song, the Coors logo, display of a can of Coors Light, the phrase “presented by Coors Light,” and in the comments, the added statement “Kicking off summer with the World’s Most Refreshing Beer at the BeachLife Festival.”

While a complaint is not the same as a ruling, at least two of the important takeaways from this case are:

1. Social media is advertising.
2. Sponsors do not acquire broad rights to third-party intellectual property simply by serving as a sponsor.

Both of these issues come up with some regularity in the business of representing a rights owner and the right of publicity.  Claiming that a social media post is somehow different from advertising on the basis that it is a fluid, user-controlled environment, or that serving as a sponsor entitles the sponsor to utilize the rights of anyone other than the party they are in contract with as a sponsor, both can lead to serious problems.

Beyonce suit against Feyonce knockoffs illustrates need for Right of Publicity distinct from trademark

A Judge recently denied Beyoncé’s request for injunctive relief against a Texas company selling a range of products using “Feyonce.”

Apparently, the Feyonce pun is based on the proximity to the word fiancé.  The Judge’s ruling, in summary, is that there was not a sufficient showing of potential confusion among customers that Feyonce was infringing Beyoncé’s trademark rights.

Thus, the need for Right of Publicity as a distinct form of intellectual property, that trademark does not adequately address, is illustrated yet again.

Here’s a link to more information on the ruling and the case:  Beyonce Feyonce Lawsuit

https://www.reuters.com/article/us-music-beyonce-lawsuit/no-injunction-for-beyonc-over-feyonc-knockoffs-u-s-judge-idUSKCN1MB38C

Observations about New York’s Assembly Bill A.8155B

One has to marvel at the arguments being attempted in opposition to New York’s Assembly Bill A.8155B.  Here is a link to the bill:  New York Assembly Bill A.8155B

In coverage of the bill (in the Hollywood Reporter coverage, link below), the MPAA says one of the fatal problems with the bill is that it does not have limitations for First Amendment purposes.  Let’s shine the white-hot light of truth on such misinformation with a quick look at S.51 of the bill:

 §  51.  Action  for injunction and for damages.  ...  
    50    2. Right of publicity exceptions. For purposes of the right of public-
    51  ity, consent for use  of  another  individual's  persona  shall  not  be
    52  required, except as otherwise provided in subdivisions three and four of
    53  this section, when used in connection with the following:
    54    (a)  news, public affairs or sports broadcast, including the promotion
    55  of and advertising for a public affairs or sports broadcast, an  account
    56  of public interest or a political campaign;

        A. 8155--B                          5
     1    (b) in:
     2    (i)  a  play,  book,  magazine, newspaper, musical composition, visual
     3  work, work of art, audiovisual work, radio or television program  if  it
     4  is  fictional  or nonfictional entertainment, or a dramatic, literary or
     5  musical work;
     6    (ii) a work of political, public interest or newsworthy value  includ-
     7  ing a comment, criticism, parody, satire or a transformative creation of
     8  a work of authorship; or
     9    (iii) an advertisement or commercial announcement for any of the works
    10  described in paragraph (a) of this subdivision or this paragraph; or
    11    (c)  fundraising  purposes  by  not-for-profit  radio  and  television
    12  stations licensed by the federal communications commission of the United
    13  States, or by not-for-profit advocacy organizations if the  use  is  for
    14  commentary or criticism;
    15    (d)  use  of the right of publicity of a deceased individual where the
    16  licensee or successor in interest has failed  to  register  and  post  a
    17  claim of right under section fifty-h of this article, with the exception
    18  of the safe harbor period listed in subdivision seven of section fifty-h
    19  of this article, until such time as a claim of right has been registered
    20  and posted as required under such section.

Accuracy appears to be the first casualty in the fight against Right of Publicity recognition.  Claiming the First Amendment will be jeopardized and creative works stifled if the legislation is passed is such a popular refrain designed to make every legislator afraid to go against something as fundamental as the First Amendment, that it will be repeated even when the statute specifically contains exactly what it is alleged to lack.

Another observation is the attempt to characterize New York’s bill as something so revolutionary, something so dangerous, that the bill simply must be shelved.  New York’s legislature has been in almost a permanent state of considering this legislation.  Many other states have Right of Publicity recognition firmly in place, and so far, I’m happy to report the First Amendment, creative works, commerce, and freedom in general have not withered in those jurisdictions.  We might have heard about it if these popular, dire predictions actually ever occurred.

Another quick observation relates to the provisions in the bill addressing deep fake uses and digital recreation of a person.  On this point, I might just sit back and listen as the lobbyists attempt to argue against a baseline provision addressing the extreme abuses possible by way of deep fake uses and digital recreation.

Lastly, in the Hollywood Reporter’s coverage, it is suggested that A.8155B isn’t really needed because the Lanham Act, false endorsement and privacy rights already provide adequate recourse.  They  don’t.  That statement would only hold true for the small number of people so famous that they can actually support a trademark claim.  Suggesting that the Lanham Act and privacy rights are a sufficient substitute for the Right of Publicity is simply inaccurate, and this point ought to be beyond debate.  The article says it is not attempting to take offer competing interpretations and that both sides are probably guilty of overreaching, but then comments only on supporters of the bill, with no commentary or insight on how the studios and opponents to the bill may also be overreaching.  Here is the link:  Hollywood Reporter coverage on New York’s Assembly Bill A.8155B

In the ugliness of lobbying, it is apparent that being right, or even knowing what the legislation actually says, is not really an important detail.

Do a few suits equal a “wave?” Are producers having a hard time making creative works?

At a recent Napa Valley ABA panel, the argument reportedly was made that a wave of lawsuits filed against media companies is making it harder for producers to make documentaries, docudramas and sports features. I’m reminded of the coverage after Comedy III or the Tiger Woods case against Jireh, when claims were made that “artists can’t create art anymore.” Gotta love hyperbole.

Last time I checked, a few lawsuits doesn’t constitute a wave. And it sure doesn’t seem like the documentary, docudrama and sports feature categories are struggling. I’d wager that more such words are being created now than ever before.

The pending suit by Mohammad Ali’s rights owners against Fox for a Super Bowl spot, and a separate claim by Olivia de Havilland are probably the main examples of this “trend” or “wave.” Why don’t we speak of the trend or wave of media giants and advertisers trying to get for free rights that should be licensed? Sure, documentaries, docudramas, and whatever “sports features” are may present specific cases, but it isn’t too radical of an idea to suggest that each situation may present unique facts or characteristics that must be considered. Bad lawsuits will be filed, in all areas of the law. Abuses will happen by billion-dollar corporations or industries, of all manner of intellectual property rights. It happens, and we have laws and a system for addressing them.

Let’s try not to get carried away. My experience is those making the most dire predictions of a dystopian world where the right of publicity has consume the First Amendment rights are usually those aligned with the deep pockets that benefit most from such misinformation, or from those with precious little experience working with and representing rights owners.

Law 360 “Wave of Suits”

Italian Steve Jobs fashion company makes obvious the necessity for meaningful Right of Publicity provisions

For those who argue against the need for meaningful Right of Publicity legislation, like many I have observed in the latest New York legislative effort, I offer the following situation as a compelling example that not only demonstrates the necessity of Right of Publicity recognition, but also the inadequacy of trademark law as a sufficient substitute.

An Italian company led by two brothers started a fashion company called Steve Jobs. There is no mistaken identity or alternate Steve Jobs intended by the fashion company; they openly confirm that their company is named after the late Apple-innovator Steve Jobs. Want proof? Their logo is the letter “J” with a bite taken out of it, just like Apple’s iconic trademark.

While many will already see the obvious, note that an EU trademark proceeding determined that the fashion company’s logo is (somehow) not a J with a bite out of it because (apparently) a J cannot be bitten as an apple can.

Perhaps under the guise of feigning nobility or respectfulness, the company states that they won’t make shoddy products because they “respect the name of Steve Jobs.” Of course, that respect doesn’t preclude them from including Steve Jobs’ quotes in their promotional efforts.

This, loyal readers, scholars or members of the media, is why we need a Right of Publicity. This situation exposes the inadequacy of arguing that trademark law provides sufficient protection for publicity-rights interests. It also demonstrates the compelling necessity for meaningful Right of Publicity legislation as a distinct member within the intellectual property family.

Here is a link to an article with more details on the matter:

Italian Steve Jobs company v. Apple article

Former Bears player Brian Urlacher files lawsuit against Florida hair clinic

If the report on this link is accurate, that a Florida hair clinic used Brian Urlacher without permission to promote their services, this sounds like a clean-cut case of Right of Publicity infringement.  Urlacher reportedly had an endorsement deal with a Florida clinic whose services Urlacher did in fact use, which will likely enhance his position in the damages portion of the lawsuit.  Here’s a link with a bit more information:  Brian Urlacher sues Florida hair clinic

Indiana case law on appropriation from 1949

I am always on watch for legislative developments or new case law concerning the Right of Publicity, but I also find it interesting to consider the path that the Right of Publicity has traveled.  The body of case law on the Right of Publicity is some of the most fascinating, and at times colorful, in all of law.

When I was working on Indiana’s revised Right of Publicity statute in 2012, one of the points I emphasized to the legislative committee was that neither the revised legislation I was advancing nor the original Indiana Right of Publicity statute sought to create “new” rights.  Instead, the statute aimed to codify common law recognition of rights analogous to the Right of Publicity.

I recently came across an article in Res Gestae, January /February 2013, Vol. 56, No. 6, entitled Intrusion into privacy… by Neal Eggeson, which exemplifies the point I was making to Indiana’s legislature.  The article notes the case Continental Optical Co. v. Reed, 86 N.E.2d 306 (1949), in which the court recognized the tort of appropriation of a lens grinder whose image was used without authorization in an advertisement for a lens manufacturer.  The Res Gestae article is not about the Right of Publicity, but this does illuminate how one can pick up the trail of a concept, or store away data that may be useful in the future.

Just looking out for the viewers and users of www.RightOfPublicity.com.