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.
Driver: 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 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
At the bottom of this entry is a link to more detailed analysis of the Copyright Restoration Act bill introduced by Senator Hawley in mid-May 2022, but for this entry, I will offer just a few observations. The bill seeks to curtail copyright duration and recast it in the former model of life of the author plus 28 years with an optional 28-year renewal. An explanation accompanying the bill uses the word “woke” twice in one sentence, and seems premised on the idea that the current copyright duration model was simply a Republican handout to Disney.
It could be interesting if someone were to research whether the prior legislative activity leading to the current copyright duration model can rightly be characterized as purely a Republican effort, or merely a handout, but the legislation was processed and deliberated over. The quotations accompanying the introduction of the bill seem to make clear that the bill is not about good, needed legislation, but rather some form of political posturing, which may not be the best foundation for legislative activity or intellectual property recognition. While the former model of 28 years with a potential renewal window has generated a lot of legal work for some due to its complexity and susceptibility to being manipulated, it could also be a good point to research whether the 28 plus 28 renewal is an efficient, clear and fair model to utilize. There are good reasons the copyright model moved on from the former structure.
What happens in the copyright realm often makes it way to the Right of Publicity realm. It seems the bill is not likely to pass, but it could be an entry worth marking for posterity.
For more information on the bill, see:
Don’t Say Copyright: lexology link to Frankfurt Kurnit Klien & Selz analysis article
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.
The following link leads to a useful article on Canadian personality rights (equivalent to the Right of Publicity in the U.S.): http://www.americanbar.org/publications/landslide/2016-17/november-december/protecting_professional_athletes_personality_rights_canada.html
This should lay to rest that old yarn that “it is easier to get forgiveness than permission.” Late last week, Michael Jordan won an $8.9 Million damages award against the grocery store that used his Right of Publicity without permission in print ads that ran in Sports Illustrated.
At trial, jurors heard the familiar infringer’s refrain that Dominick’s achieved no benefit from the ads, and based on expert valuation testimony, the most it should pay for the ad was around $126,000. Of course, this overlooks the fact that Michael Jordan apparently does not do deals for $126,000 and rather, the starting fee for a license to use Jordan’s Right of Publicity is generally in the $10 Million range.
So at $8.9 Million, Dominick’s may have gotten a 10.1 % discount.
The Massachusetts Senate has passed a bill urged by Bill Cosby to statutorily recognize a post-mortem Right of Publicity in Massachusetts. The bill heads next to the Massachusetts House of Representatives. I’m including a link (below) to NPR’s coverage of this very positive legislative development.
As is often the case when the media covers the Right of Publicity, the coverage does not give the most balanced picture of the functioning of these rights and the policy purposes behind them. That’s probably the fault of no one or nothing other than time limitations and the need to get in and out of a complex topic in short segments. But, for example, it’s really not that difficult to determine who owns the Right of Publicity of a personality after a person dies, as the host declares. The coverage also does not point out all the limitations and allowances for First Amendment purposes that accompany most Right of Publicity statutes. And lastly, I strongly caution against acting on host Anthony Brooks’ conclusion that “if a business wants to trade on the image of Marilyn Monroe, they can.” (Just after the 2:00 mark in the NRP clip.)
Professor Ray Madoff of Boston College Law School does a good job discussing some of the high points of the Right of Publicity. To the credit of the producer of this segment on NPR/Radio Boston, I (the administrator of http://www.RightofPublicity.com) was consulted to verify certain information about Right of Publicity statutes throughout the country (the part in the interview when the host Sacha Pfeiffer says “we looked this up”).
Here’s a link to the radio segment: http://radioboston.wbur.org/2014/06/13/dead-right-publicity