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

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

A few notes on “Copyright Restoration Act” bill and Disney

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

“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.

Tara Reid sues over Sharknado merchandise

Actress Tara Reid apparently has filed a lawsuit seeking $100 million relating to merchandising of the Sharknado film franchise.   Reportedly at issue are product categories such as branded beer and slot machines with her likeness on them, which according to her contract require her separate approval.   From a distance, this looks like a contract dispute more than a Right of Publicity case, though certainly the Right of Publicity is implicated by the issues at hand.  If her likeness is on the product, one hopes that the transformative test would not be twisted and stretched to attempt an argument that the image on the product is meant to be the character from the film, not the actress herself, that her likeness is transformed.  But it wouldn’t be the first time a carefully tailored test gets twisted down the line.

Here is Forbes coverage of the lawsuit:  https://www.forbes.com/sites/legalentertainment/2018/12/07/tara-reid-sues-sharknado-producers-for-100m/#26b5b9672c46

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”

Muhammad Ali lawsuit against Fox for Super Bowl LI promo

Muhammad Ali’s representatives have filed a $30 million lawsuit on behalf of Muhammad Ali Enterprises (MAE) against Fox Broadcasting Company.  The suit centers around a three minute promotional ad for Super Bowl LI which ran before the Super Bowl in 2017.  The spot includes various other personalities, past and present, in addition to Ali who is the focal point.

Here is a link to the complaint:

Thelonius Monk suit illuminates risk in craft beer labels

The rise in craft brewing labels has been accompanied by a custom in the industry to develop colorful names and labels.  While this dynamic creates the likelihood of infringements occurring, a recent lawsuit filed by the estate of Thelonius Monk involves additional considerations and backstory.

The North Coast Brewing Company apparently has produced its Brother Thelonious ale for about ten years.  Initially, permission was given verbally by the Monk estate.  Some degree of profits were to be given to the Thelonius Monk Institute of Jazz, a nonprofit music education program in D.C.  The dispute seems to involve activities beyond the anticipated use that was authorized verbally.

That said, it seems likely that the craft brewing industry has the potential to yield similar disputes involving iconic personalities.  For practitioners working with craft breweries, or the breweries themselves, this lawsuit could be instructive.

Here is a link to more details and an image of the Brother Thelonius label:

http://www.sfgate.com/beer/article/Thelonious-Monk-estate-sues-North-Coast-Brewing-12162234.php

Preemption question: Copyright v. Right of Publicity

The Ninth Circuit Court of Appeals in Maloney v. T3 Media, Inc., Case No. 15-55630 (9th Cir. April 5, 2017), recently issued the latest installment in the age-old supposed showdown between Copyright and the Right of Publicity and the issue of preemption.  The Court states in the holding that preemption can occur “when a likeness has been captured in a copyrighted artistic visual work and the work itself is being distributed for personal use.”

To be clear, copyright does not automatically preempt the Right of Publicity.  The two doctrines protect distinct interests and, have separate policy purposes.  Preemption generally requires a very specific fact pattern.  The assumption seems to be that if the Right of Publicity co-exists in tandem with a copyright interest, preemption must be applicable.  That is not the case, and there are countless examples of uses, situations and fact patterns where various rights or interests apply simultaneously without one preempting the other.  I read Maloney as a fairly confined, and specific ruling on a distinct fact pattern.

Here is a link to an article with more elaboration on the specifics of the case:

http://www.lexology.com/library/detail.aspx?g=00561f3d-b251-4058-af0a-09c44e88fb22&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2017-04-12&utm_term=

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

Pierre Garcon, WR of Washington Redskins, sues daily fantasy company FanDuel

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.

http://abcnews.go.com/Sports/redskins-pierre-garcon-sues-fanduel-behalf-nfl-players/story?id=34865227

Pope Francis dolls?

Here’s a Right of Publicity fact pattern to kick around:  can a company make Pope Francis dolls without a license from the Pope?

I don’t know if the recently announced Pope Francis dolls from Bleacher Creatures are licensed or not, so I want to be clear on that point and allow for the possibility that they are.  Bleacher Creatures primarily makes 10″ dolls of famous athletes, and they wouldn’t be doing that without permission.

In the link below, I find it interesting that the company is said to be “crossing their T’s and dotting their I’s” but the extent of that due diligence appears to be simply that they “reached out to the Vatican” and “would love to officially partner with them.”  Taken at face value, that strongly indicates that they do not have any form of permission to make the dolls.

Of course, “reaching out” coupled with a statement of desire to “officially partner” is not all that is needed to proceed with commercial products of a famous person.  Perhaps the play here is that the Pope isn’t likely to file a claim over it, but last time I checked, “likelihood of getting away with it” was not the legal standard for Right of Publicity infringement.

http://money.cnn.com/2015/02/16/smallbusiness/pope-francis-plush-doll/index.html

Brief note on coverage of Massachusetts Senate’s passage of Right of Publicity bill

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

Ruling in favor of Michael Jordan gets it right

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.

http://m.espn.go.com/general/story?storyId=10491664&city=chicago&src=desktop

Internet scam ads could trigger Right of Publicity claims

An article in the January/February 2014 issue of The Atlantic entitled Jesse Willms, the Dark Lord of the Internet examines how one person has made a fortune from promoting products with deceptive or even fraudulent online advertisements.  The article reports that the ads have included use of either the names or images of famous people.

The article talks about Oprah Winfrey and others who have filed lawsuits based on the fraudulent aspects of the ads, but I wonder if those lawsuits included Right of Publicity claims as well?  Without examining the mechanics (jurisdiction, among other things), perhaps a meaningful damages award for a Right of Publicity infringement would serve as a bit of a deterrent?

Here’s a link to the online version of the article in The Atlantic:  http://www.theatlantic.com/magazine/archive/2014/01/the-dark-lord-of-the-internet/355726/

Kanye West responds to Coinye West infringement

File this in the “sad but true” category:  even blatant intellectual property infringements can create a successful PR stunt.  Apparently, the handful of people behind the virtual currency company calling itself “Coinye West” have refused to back down, though they apparently did drop “West” from the name.

As I teach in my Right of Publicity classes, context matters.  Dropping West from the name at this stage does nothing to reduce liability, and really only confirms that the infringer knew the activity was an infringement in the first place.  There also is that small detail of a rendering of Kanye West appearing on the “coin” itself.

I don’t normally take sides in these matters, and Kanye is himself no stranger to either controversy or PR manipulation; nevertheless, this kind of blatant infringement is the sort of thing that the Right of Publicity exists to address.  Perhaps after a legal ruling comes down, the cost of the infringement will be massively more than the PR (or venture capital funding behind the company?) was worth.

We’ll see what happens next.  Here’s a link to the letter sent by Kanye West’s attorneys:

http://online.wsj.com/public/resources/documents/20140107-WSJ-coinye.pdf

A rare reported settlement figure, $356,000, in Marlon Brando Estate suit against Ashley Furniture

Thanks to a stipulated settlement read into the record on February 3, 2012 in a lawsuit brought by the Marlon Brando Estate against Ashley Furniture, we have a rare example of a publicly-disclosed settlement amount.  Brando’s Estate is settling its claims against Ashley Furniture for $356,000, including an allocation for attorney’s fees.  The dispute was over a furniture line designated as “Brando.”

There is a similar lawsuit still in process involving Humphrey Bogart and a “Bogart” couch offered by Ashley Furniture.  In that case, Ashley Furniture reportedly argued that it “was not diluting a generic name” and sought a declaration that the Right of Publicity can’t be applied to the name of a couch.

I would agree with Ashley Furniture that they aren’t diluting a generic name, because neither Brando nor Bogart can be said to be generic names.  Even without use of their first names, each name is clearly identifiable as Marlon Brando and Humphrey Bogart.  When taken in context, with a Brando product next to a Bogart product, there really can be no reasonable argument that those names aren’t identifying Marlon Brando and Humphrey Bogart.

The idea that the Right of Publicity should somehow not apply to the name of a couch would be laughable if it wasn’t the kind of argument that seems to be increasingly employed by those caught infringing.

Here is a link to Eriq Gardner’s write-up in The Hollywood Reporter: http://www.hollywoodreporter.com/thr-esq/marlon-brando-ashley-furniture-lawsuit-couch-humphry-bogart-287389

Plans for Steve Jobs action figure, biggest Right of Publicity story of 2012?

The biggest Right of Publicity story of 2012 so far has to be the news that a company called In Icons is preparing to issue a Steve Jobs action figure.  In response, Apple reportedly sent a cease and desist letter to In Icons, prompting Tandy Cheung of In Icons to state “Apple can do anything they like…I will not stop, we already started production.”

I hate to break it to them, but if an activity is prohibited by law, the fact that the offending company is already in production would provide no defense or entitlement to proceed.  This Steve Jobs action figure is exactly the kind of unauthorized commercial product that the Right of Publicity is designed to address, if not prevent.

Cheung reportedly stated “Steve Jobs is not an actor, he’s just a celebrity,” and that “[t]here is no copyright protection for a normal person.”   Aside from the various legal errors in that comment, I can’t help thinking that this line of thought is exactly what gets companies sued for Right of Publicity violations.

Here is a link to the MSNBC article containing Cheung’s quotes and reporting many more details on this story: http://technolog.msnbc.msn.com/_news/2012/01/05/9972437-apple-tries-to-ban-realistic-steve-jobs-action-figure

The MSNBC article states that Apple claims to own the post-mortem rights to Steve Jobs’ name, image and likeness, as manifest by the In Icons action figure.  I do not know whether or not Apple has affirmatively made that assertion or if that is an assumption being drawn from the fact that Apple issued the cease and desist letter.  All things being equal, I would have assumed that Steve Jobs’ family would be the beneficiary of Steve Jobs’ Right of Publicity.  Perhaps Apple does in fact have an ownership interest in Steve Jobs’ Right of Publicity.  The Right of Publicity is assignable during life or at death through testamentary documents or intestate succession.  The Right of Publicity is also divisible in whole or in part, meaning that several owners could own varying percentages of his Right of Publicity.  Alternatively, perhaps Apple is simply handling administrative duties such as protecting against unauthorized use of Steve Jobs’ Right of Publicity.  Presumably, Apple’s legal advisors and Steve Jobs’ family and heirs have already addressed this crucial point.

In researching this story, I also came across another write-up about the Steve Jobs action figure on Paidcontent.org entitled “Steve Jobs Doll Legal In Most States, Not Indiana” which can be accessed here:  http://paidcontent.org/article/419-steve-jobs-doll-legal-in-most-states-not-indiana/

This article seems to conclude that the Steve Jobs action figure is only actionable in those states with a statutory Right of Publicity in place.  The article ends by listing those states with a statutory Right of Publicity but does not include California, which is a fairly important jurisdiction for Right of Publicity matters.  California, in 2008, passed legislation confirming that the Right of Publicity does apply to those persons who died prior to passage of the statute.  Here’s a link to the amended language:  http://rightofpublicity.com/statutes/california-2008-amendment-to-33441

This amendment, signed into law by Governor Schwarzenegger, was in response to a California ruling that concluded that Marilyn Monroe was not entitled to statutory Right of Publicity protection under California law, because of the perceived location of, and law of, her domicile at the time that she died in 1956.  California’s 2008 bill was in fact just a clarification that the law indeed always was supposed to apply to those who predeceased passage of the statute.

Right of Publicity litigation usually involves application of the Single Publication Rule, which in general terms allows a claimant to address the totality of the infringement through one cause of action.  In the absence of such procedural efficiency, a claimant might be forced to go state by state, litigating the same basic nucleus of facts, against the same parties, over only those activities that took place in that particular state.  If courts are overburdened now, which they generally are, just imagine the inefficiency and backlog that such an approach would generate.

Thankfully, this is not how Right of Publicity litigation is typically conducted.

As for Steve Jobs and whomever is the appropriate party to assert a claim for violation of his Right of Publicity, I am confident that the law would back them up if they have to litigate in response to a Steve Jobs action figure.  If not, one would have to wonder why the Right of Publicity exists in the first place.

Muhammad Ali files lawsuit against Kobo Inc. over “float like a butterfly, sting like a bee”

Muhammad Ali has filed a lawsuit against Kobo, Inc. for use of his famous slogan “float like a butterfly, sting like a bee” in a recent Kobo ad campaign.

Kobo is based in Toronto Canada, and the advertisement ran in the New York Times promoting Kobo’s electronic reading device.  The advertisement apparently did not use Ali’s image or any other elements of his persona.  The famous slogan, however, is a registered trademark.  The suit was filed in New York.

Missing from the reporting on this topic (and I have not yet seen the complaint itself) is the fact that use of this slogan also implicates Ali’s Right of Publicity.  To the extent that Ali is singularly and unequivocally identifiable by this phrase, a registered trademark likely would not be needed to support a claim based on Ali’s Right of Publicity.  Doesn’t hurt to have the registered trademark as well, though.  The slogan has been licensed to third parties, as is reportedly alleged in the complaint.

Here’s a link to the story:  http://www.businessweek.com/news/2011-07-14/muhammad-ali-company-sues-to-stop-kobo-use-of-butterfly-slogan.html