Is it okay for Antonio Brown to release a song called “Andrew Luck?”
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
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:
https://www.documentcloud.org/documents/4105801-Ali-Fox.html
Deflategate, the NFL suspension, Tom Brady and Free Brady! t-shirts
Not long after the NFL issued Tom Brady his deflategate suspension, Barstool Sports issued a “Free Brady!” t-shirt. The design has a strong resemblance to Shephard Fairey’s “Hope” rendering that was used in President Obama’s 2008 campaign. Below is a link analyzing the question of whether the Free Brady work is a fair use or copyright infringement, but I have to note that Tom Brady’s Right of Publicity is also implicated by the t-shirt which is not mentioned in the below analysis.
#deflategate #FreeBrady #NFL #Bradysuspension #TomBrady #RightofPublicity #ShephardFairey #Hope
Trademark, Right of Publicity and Super Bowl XLVII: HarBowl, Harbaugh Bowl, and Kaepernicking
The Super Bowl and the whirlwind of activities surrounding the big game never fail to deliver a season’s worth of intellectual property controversies.
This year, we have trademarks concerning San Francisco 49ers head coach Jim Harbaugh, Baltimore Ravens head coach John Harbaugh, and 49ers quarterback Colin Kaepernick making headlines. A few years ago, it was Lindsay Lohan taking on the E*Trade babies: http://rightofpublicity.com/lindsay-lohan-and-the-etrade-milkaholic-baby Before that, a controversy emerged over certain kinds of viewing parties for the game: http://rightofpublicity.com/pdf/articles/ibjnfl.pdf
It didn’t take long for clever terms such as “Harbowl” and “Harbaugh Bowl” to circulate once the Baltimore Ravens and the San Francisco 49ers, coached by John and Jim Harbaugh, respectively, were confirmed for Super Bowl XLVII. An Indiana resident had the same idea about a year ago when applying for a trademark registration on each of these terms. The terms took on added significance, of course, when the historic match-up of two brothers as head coaches squaring off against each other was confirmed for this year’s Super Bowl.
The NFL recently contacted the individual and urged him to abandon the marks, which the individual did. http://espn.go.com/nfl/playoffs/2012/story/_/id/8873809/2013-nfl-playoffs-nfl-pressures-fan-nix-harbowl-trademark When a trademark is applied for, the applicant must represent to the trademark office that the mark does not reference a living person, or that the applicant has that individual’s consent. Assuming the Harbaughs did not provide their consent to the individual’s trademark application last year, I believe this important safeguard represents one of the areas that the trademark could have been vulnerable.
The marks in question directly incorporate the last name of the Super Bowl coaches, Jim and John Harbaugh, but notice that they do not reference the NFL, the Ravens, the 49ers, or even the Super Bowl (directly, anyway). It would appear, then, that the persons or parties with standing to oppose these marks are Jim Harbaugh and John Harbaugh. But they probably have a few other matters to tend to at the moment.
Apparently the quarterback of the 49ers, Colin Kaepernick, has enough time to tend to a similar matter, as the NFL reports here: http://www.nfl.com/news/story/0ap1000000130278/article/colin-kaepernick-files-to-trademark-signature-pose
Colin Kaepernick has reportedly applied for a trademark for the word “Kaepernicking,” the instantly-popular reference to his touchdown celebration of flexing his arm and kissing his bicep. The NFL article on the above link makes the assumption that his trademark is for the gesture, and is rather critical of Kaepernick for seeking protection for a gesture which did not originate with Kaepernick. A critical but seemingly overlooked detail is that the trademark is for the term alone, which is based on his name. If Colin Kaepernick intends to use the term on products, as ownership of a trademark requires, then I expect he would have the right to secure this mark. It could be that the application is a defensive move to counteract infringing products and interlopers looking to cash in on Kaepernick’s rapid rise to stardom. Super Bowl XLVII will be only his tenth NFL start.
In all of the above examples, there also is a strong Right of Publicity element involved with the terms HarBowl, Harbaugh Bowl and Kaepernicking. Use of any of these terms without corresponding permission from Jim Harbaugh, John Harbaugh, or Colin Kaepernick would likely face Right of Publicity liability, as each of these Super Bowl XLVII competitors are unequivocally identifiable from the terms.
And we haven’t even seen the 2013 Super Bowl ads yet.