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
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:
- Social media is advertising.
- 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.
The $30 million lawsuit filed by Muhammad Ali Enterprises against Fox, for a three minute promo ad that ran in advance of the 2017 Super Bowl. While Fox felt that the spot was protected, the problem with that theory is the spot had all of the hallmarks of an advertisement, and functioned as an advertisement over all else. Such uses are the kind the right of publicity is designed to address. And while a settlement is not a judicial interpretation, the fact that it settled would seem to confirm that Fox overstepped the bounds in this instance. Here’s a link to a prior entry when the suit was still pending: Muhammad Ali Ent. files $30M suit over Super Bowl ad
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/
The band No Doubt filed a lawsuit against Activision earlier this month. The suit is based on the band’s objection to the use of the band members as avatars which game users can use to perform songs other than the band’s own material. The suit references the possibility of the band’s front person, Gwen Stefani, being made to perform the Rolling Stones’ Honky Tonk Woman, the lyrics of which reportedly are offensive to Stefani.
Some may recall the suit filed by Courtney Love against Activision, over the potential use of Kurt Cobain being made to perform music that Cobain would have objected to on artistic grounds.
An interesting twist to the No Doubt case is that the band had a contract with Activision for certain uses of the band and its music. Apparently the dispute is about the other uses a game player can make of the No Doubt characters. Recent draft right of publicity legislation reflects the video game industry’s lobbying efforts to make disputes such as the No Doubt lawsuit a thing of the past. In an effort to align video games with other statutorily-exempted uses, the lobbyists for the video game industry would like video games to be considered a protected medium and not subject to liability for right of publicity claims.
Here is a link to one of many articles reporting the story: http://www.shacknews.com/onearticle.x/61134