Brief note re: Hulk Hogan’s $140M jury award against Gawker

An insightful and well-written article by Eriq Gardner of The Hollywood Reporter can be found here: http://www.hollywoodreporter.com/thr-esq/why-hulk-hogans-140-million-876990

My take on the $140 million jury award to Hulk Hogan against Gawker is that it does not portend a stifling of the press or an impediment on the First Amendment.  The amount is a lot, sure.  A substantial amount of it is punitive damages.  And to be clear, there are particular facts in this case that should give everyone pause about how far the media can go in publicizing information of any kind, at any cost, no matter how it is obtained, and no matter the consequences.

I’m not taking a position on whether Gawker should or shouldn’t be liable or to what extent.  But just as the First Amendment and freedom of the press is of paramount importance and should be cautiously navigated, so too is the right of privacy and the extent to which any and every piece of information can be deemed newsworthy and subsequently published.

The Right of Publicity and the First Amendment have always moved in lockstep.  Some cases get it right; some don’t.  Some favor the First Amendment, others favor the Right of Publicity.

As Eriq Gardner’s article correctly notes, the ruling is likely to be appealed.  The amount of the award could easily be reduced.  The parties could settle on an undisclosed amount to end the litigation.

But I do not have any particular concerns at the moment about the fallout of the Hulk Hogan ruling.  The facts of the case are quite specific, and the legal process has to be allowed to play out.  If a jury finds that something unacceptable or egregious took place, perhaps they are not wrong.

Hollywood Reporter’s “Hollywood Hologram Wars” quotes Faber of RightOfPublicity.com / Luminary Group

Nice to be quoted in Eriq Gardner’s new piece in The Hollywood Reporter entitled “Hollywood Hologram Wars: Vicious Legal Feud Behind Virtual Mariah, Marilyn and Mick.”  The article does a great job examining the business potential and burgeoning adoption of so-called hologram technology as well as corresponding growing pains and legal issues, particularly between those developing the technology itself.

In answer to Eriq’s question of “what’s the licensing and business potential for this technology?” I also said that it depends on:

a) what is being counted (fees to the estate, to the owners of the technology itself?); and

b) gross or net; and

c) how the market responds.

If the market responds well to an Elvis live show on a world tour, those gross earnings alone could be well on the way to the billion mark.  And if it follows with a Johnny Cash or Michael Jackson tour,  yes, it will reach billion dollar potential. And, will people be interested in seeing Michael Jackson “live” once, or over and over?

Here’s the link to Eriq Gardner’s The Hollywood Reporter article:

http://www.hollywoodreporter.com/thr-esq/hollywood-hologram-wars-vicious-legal-798401

Marilyn Monroe Estate considering litigation against Digicon Media in response to “Virtual Marilyn”

Looks like my predictions in the May 9, 2012 edition of the Indiana Lawyer were prescient.  Specifically, in response to the debut of Tupac’s hologram, I went on record stating that this technology is likely to lead to both licensing and new business opportunities as well as litigation over unauthorized use of the technology by third parties with no relationship to the individual or entitlement to the underlying intellectual property rights.  Here’s a link to that Indiana Lawyer article:  http://www.theindianalawyer.com/-hologram–performance-by-tupac-creates-legal-questions-for-ip-lawyers/PARAMS/article/28758?page=1

Mr. Eriq Gardner of The Hollywood Reporter has posted an intriguing article on the exchanges between the lawyers for the Marilyn Monroe Estate and Authentic Brands, majority owner of the intellectual property rights to Marilyn Monroe, and Digicon Media, which claims to have “copyrighted” the virtual Marilyn.  I put “copyrighted” in quotes because that is a big, and dubious, assertion to make.  Digicon Media claims to have grand plans for the virtual Marilyn.

Here’s a link to the full article in The Hollywood Reporter, complete with actual copies of the correspondence between the parties:

http://www.hollywoodreporter.com/thr-esq/marilyn-monroe-estate-hologram-legal-334817

This article and the various documents embedded within the article provide a fascinating glimpse into the inner workings of representing and protecting the rights of a deceased individual.  This appears to be a transparent (pun intended) attempt to make a play for Marilyn Monroe in the virtual realm.  The Right of Publicity, as well as the various trademarks pertaining to Marilyn Monroe, should have no trouble reaching into that realm and ensuring that the attempt to “copyright” the hologram Marilyn would somehow give Digicon Media ownership over any aspects of Marilyn Monroe.