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.
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
Forbes has just released the annual “Top-Earning Dead Celebrities” for 2016. The most notable aspects of this year’s list are the new entries of recently departed personalities, and the amount of the number one earner. Here is a link to Forbes’ coverage: http://www.forbes.com/sites/zackomalleygreenburg/2016/10/12/the-highest-paid-dead-celebrities-of-2016/#5a1f53dd8d2e
Arnold Palmer (#3), Prince (#5) and David Bowie (#11) are the unfortunate new members on the list due to their recent respective deaths in 2016. In Palmer’s case, he had already created a vast business empire so the revenue sources that put him on this particular list were already in place. For Prince, who perhaps is the most surprising entrant on this list due to the especially shocking news of his death, the earnings are due to the surge in music sales that often follow the death of a notable artist. The same could be said of Bowie, but Bowie’s numbers also benefited from the release of a new album that closely coincided with his passing.
The other notable surprise in this year’s list is the amount assigned to the number one entrant, Michael Jackson, at $825 Million. Compare that figure to the number two spot, Charles Schulz, at $48 Million. It is worth noting that Jackson, since his death, has almost always taken the top spot, and while never quite at the $825 Million mark, the drop off from first place to second has often been very steep.
Pierre Garcon, wide receiver for the Washington Redskins, has filed a class action lawsuit against the daily fantasy company, FanDuel. Whether the overall media correctly identifies it or not, this lawsuit is primarily a Right of Publicity claim.
Past lawsuits against fantasy sports providers generally have not been successful. Simply stated, prior cases have held that that publishing game statistics are not a commercial use, much in the same way that a newspaper reports on box scores without incurring liability. This tends to make sense as long as no one player is being singled out, and the use is confined to the statistical performances with every competing athlete being used (or capable of being used) in exactly the same manner. There is, of course, a difference between news reporting on game statistics the day after a game and operating a for-profit site that earns its profit from the players’ performances.
But the real fulcrum point may exist in the advertising and promotion for FanDuel. If a very small collection of players are appearing by name or otherwise in advertisements for a company, and if additional elements like dollar values of a given player or other elements specific to the daily fantasy operation are being added by that company, it quickly could take a different complexion.
Unlike DraftKings, which has authorization from the NFL Players Association, FanDuel apparently does not.
I want to take a moment to thank Wes Anson of Consor, who quoted me at length in his new publication for the ABA entitled Right of Publicity: Analysis, Valuation, and the Law. I haven’t had time to read the book carefully yet, but it appears to be well done. I’m sure it will be a useful resource to many.
I did notice that the section on Indiana’s current Right of Publicity statute is not quite on point or up to date. In 2012, I secured passage of a critical piece of legislation that solidified Indiana’s Right of Publicity position in the wake of a problematic judicial decision. Here’s a link to more information on that development: http://rightofpublicity.com/faber-secures-passage-of-indiana-right-of-publicity-statute
In ruling for the plaintiffs in Davis v. Electronic Arts earlier this week, the Ninth Circuit has given us the latest interpretation of the Transformative Use test. This ruling comes only a few months following a contrasting ruling in Noriega v. Activision, in which the Transformative Use defense led to a ruling in favor of the defendant.
The Activision case centered on inclusion of former Panamanian dictator Manuel Noriega in Call of Duty: Black Ops II. Former New York Mayor Rudy Giuliani served as co-counsel for Activision, and the following Hollywood Reporter article provides good insight as well as a link to the defense’s memo in support of its motion to strike Noriega’s complaint.
It is interesting to consider if the day might ever come when Rudy Giuliani might want to assert his own Right of Publicity in response to a commercial use of some kind.
In its Davis v. Electronic Arts ruling, the court looked to its prior ruling in Keller v. Electronic Arts, where the court also rejected the Transformative Use defense advanced by EA. The court in Davis v. Electronic Arts stated that the Madden video game “replicates players’ physical characteristics and allows users to manipulate them in the performance of the same activity for which they are known in real life – playing football for an NFL team.”
There are certainly considerable differences between the extent of use, purpose of use, and commercial aspects between the use of former NFL players in the Madden game and that of Noriega in Black Ops II, so in general, I applaud the Ninth Circuit’s rejection of the Transformative Use defense in its determination, and in not taking the usual “throw the baby out with the bath water” that too-often seems to accompany rulings concerning the Right of Publicity, as in the overreaching ruling in Indiana against the heir of John Dillinger in a case against EA.
That ruling led to my effort to amend Indiana’s Right of Publicity statute in 2011 and 2012, which was passed and successfully maintained the integrity of Indiana’s Right of Publicity statute:
Here is a link to the January 6, 2015 ruling in Davis v. Electronic Arts:
Earlier this week, the Seventh Circuit Court of Appeals in Illinois ruled in favor of Michael Jordan, holding that a grocery store’s “congratulatory ad” is not protected speech. The Jewel Food Stores advertisement in question ran in Sports Illustrated in 2009, congratulating Michael Jordan on his induction to the Pro Basketball Hall of Fame.
While the court’s ruling gets it right, the tone of ESPN’s coverage in the link below indicates that this ruling might not be fully understood. The coverage in the article is thorough enough to allow the reader to reach his or her own conclusions, I think. And for the avoidance of doubt, here is a link to the decision itself: http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2014/D02-19/C:12-1992:J:Sykes:aut:T:fnOp:N:1292976:S:0
When the lower court ruled against Jordan, I believed the wrong decision had been reached and I was confident Jordan’s appeal would prevail.
In general, advertising falls in the realm of commercial speech. And there is quite an incentive for businesses to cozy up to a celebrity like Michael Jordan via advertising of this kind. The starting fee for an authorized association with Michael Jordan, as reported in the link below and in the above ruling, is $5 million.
I might feel differently if the grocery store had insisted on remaining completely anonymous: no use of the grocery store’s name, logo, motto, website, address or any other designations. If that was the nature of the advertisement, I might give more credence to the “congratulatory” argument. But those kinds of advertisements don’t come around very often.
The Licensing Journal publishes Jonathan Faber’s article on celebrity licensing, technology, and the Right of Publicity
The Licensing Journal, Volume 32, Number 8, September 2012
“Celebrity Licensing and the Right of Publicity: New Frontiers of Opportunity and Liability”
Here’s a link to where the PDF can be downloaded: http://rightofpublicity.com/pdf/articles/LicensingJournal-Sept2012.pdf
Citation: The Hebrew University of Jerusalem vs. General Motors; Case 2:10-cv-03790-AHM -JC Document 187 Filed 10/15/12
Massachusetts is again considering Right of Publicity legislation for deceased personalities. Here is a link to the bill: http://www.malegislature.gov/Bills/187/Senate/S01713
Forgive me for the unusual structure of this posting, but I thought it would be of interest to post the press release that issued following Governor Mitch Daniels’ signing of the Right of Publicity bill that I authored and testified in defense of in January, 2012, at the Indiana State House.
For immediate release: April 19, 2012
Adjunct Professor Helps Preserve Indiana’s Right of Publicity Law
Indianapolis, IN— Now that House Enrolled Act 1258 has been signed into law by Governor Mitch Daniels, Indiana has preserved the spirit and intent behind Indiana’s Right of Publicity law and maintained its position as a leader in Right of Publicity recognition, according to Jonathan Faber, founder and CEO of Luminary Group. Luminary Group is a licensing and intellectual property management company that represents icons such as Babe Ruth, Vince Lombardi, and Jesse Owens.
Faber, a 1999 graduate of Indiana University Robert H. McKinney School of Law, authored, testified in support of, and defended HEA 1258. He teaches “The Right of Publicity” at the law school and also is an intellectual property attorney with McNeely Stephenson Thopy & Harrold in Shelbyville, Ind.
“Indiana’s Right of Publicity law was enacted in 1994 on the strength of testimony from James Dean’s family and Ryan White’s mother,” said Faber. “Since then, it was widely understood that Indiana’s law would protect the rights of those who died before 1994, since the rights existed at common law and the statute simply codified those rights.” Nevertheless, a 2011 non-binding judicial ruling in Indiana last year concerning use of John Dillinger in a video game threw this into question.
Opposing Faber’s bill was the Motion Picture Association of America. “The MPAA treated this as an opportunity to overhaul Indiana’s entire statute, but the underlying statute was not under review and is entitled to a presumption of validity,” Faber said. “Indiana’s statute already has language that addresses the MPAA’s concerns.”
The Right of Publicity refers to the right of a person to control the commercial use of his or her identity. “Most states correctly view this as a property right, and it therefore survives the death of the individual,” Faber said. “The concern with HEA 1258 is confirming how this intellectual property right is handled after a personality dies.”
Faber is the creator of the online Right of Publicity resource, www.RightOfPublicity.com. He also teaches “Licensing Intellectual Property” at the IU Maurer School of Law.
Faber has served as an expert witness in cases involving Uma Thurman, Motley Crue founding member Nikki Sixx, the animated character Madeline, and NASCAR driver Robby Gordon. In fall 2011, Faber testified in support of Zooey Deschanel in her claim against Kohl’s Department stores and designer Steven Madden. Earlier this month, Faber and Luminary Group performed a valuation of Indiana native coach John Wooden’s estate.
To reach Faber for interviews and additional comments, call 317-428-5441.
About Indiana University Robert H. McKinney School of Law
With an enrollment of more than 1,000 students, IU McKinney School of Law is the largest law school in the state of Indiana. Occupying a spacious, new, technologically advanced building, the school is located in the heart of downtown Indianapolis, Indiana. The school has enjoyed great success for more than 100 years in preparing students for legal careers. The success of the school is evidenced by the prominent positions graduates have obtained in the judiciary and other branches of government, business, positions of civic leadership, and law practice. The school’s 10,000 alumni are located in every state in the nation and several foreign countries. More information about the law school is available at indylaw.indiana.edu.
For more information, contact:
Director of Communications and Creative Services
Indiana University Robert H. McKinney School of Law
Lawrence W. Inlow Hall
530 West New York Street
Indianapolis, IN 46204