Suit by 1983 championship NC State team against NCAA, CLC may be one to watch

With the rapid passage of various so-called “NIL” statutes in numerous states, it is perhaps inevitable that a claim will come along which may not be fully answered by the statutory provisions. Without speculating if that will be applicable in the following, I will note simply that the dynamics of the recently filed suit against the NCAA and Collegiate Licensing Company by players of the North Carolina State 1983 championship team, may be one to watch. Here’s a link with more information about the filing: Players from 1983 NC State team file suit against NCAA, CLC

The Right of Publicity and Scarlett Johannson’s response to ChatGPT Sky voice

Details and context matter in Right of Publicity analysis. As a brief summary, OpenAI recently released its ChatGPT 4.0 with a chatbot voice (“Sky”) which Scarlett Johannson says is “eerily similar” to hers. We don’t know how the situation may get resolved, but the Right of Publicity provides a response. Apparently, an offer was made by OpenAI for Johannson to voice the ChatGPT 4.0 chat bot. Johannson declined. It may have seemed like a natural fit due to Johannson’s role in the movie Her in which she was the voice of an AI system. Perhaps that fit was so natural that on May 13, 2024 in proximity to the release, Sam Altman issued a one-word tweet: “her.” Past negotiations and this tweet could be the subject of considerable attention, as an example of why “details and context matter” when it comes to the Right of Publicity. The company has denied that Sky was meant to sound like Johannson, but these details could possibly indicate otherwise.

Here is a link to one of numerous articles providing more details: Scarlett Johannson ChatGPT voice that sounded like her

Is #Hollywood Accounting trending yet?

Bijan Mustardson illustrates Right of Publicity (NIL) in action

In what may be a contender in the “most clever” licensing event of recent times, the running back for Texas, Bijan Robinson, is involved in a mustard line launch entitled “Bijon Mustardson.” It is, quite obviously, a dijon mustard. Also, quite obviously, this “NIL deal” is more properly understood as a Right of Publicity matter, though admittedly involving a collegiate athlete. We’ll let semantics have a rest and simply enjoy when the licensing deals practically write themselves. Here’s a link to more info:

Bijan Mustardson” rel=”noopener” target=”_blank”>Bijan

US Supreme Court to consider Andy Warhol’s Prince Series in relation to copyright fair use and transformative test

You can find information concerning the dispute between the Andy Warhol Foundation (AWF) and photographer Lynn Goldsmith elsewhere, such as the factual underpinnings, lower court rulings on the case to date, and the arguments on either side easily enough in other place. Given the recent acceptance of a writ of certiorari by the United States Supreme Court (SCOTUS), I will simply note a few details that could be interesting to watch from a Right of Publicity perspective.

First, it is interesting to consider that in Comedy III, the court specifically cited Warhol’s Marilyn as the example of a transformative work, in crafting and applying its transformative use test to the Right of Publicity. Often lost in discussion of the case and reference thereto, the rightsowners of the Three Stooges (Comedy III) won the case on Right of Publicity grounds in relation to the commercial activities that had occurred in relation to a charcoal sketch of the Three Stooges by the defendant. The original work of art itself was not really the issue, but rather, the activities connected to that work were found to constitute a Right of Publicity violation. The Judge carefully articulated a test for deciding such situations, thus advancing the transformative use test for Right of Publicity purposes.

In the Warhol dispute concerning Lynn Goldsmith’s Prince photograph, the issue is of a copyright nature. Still, it is interesting that in a notable prior case (Comedy III), Warhol’s Marilyn was cited as the example of a transformative use. Now, in the AWF / Goldsmith matter the very question of whether Warhol’s rendering of Prince is transformative takes center stage.

Second, in teaching Comedy III this semester after news of SCOTUS accepting AWF’s petition, a question was raised whether Warhol perhaps used a reference photo in creating his Marilyn work. The inquiry is intriguing, though perhaps only for academic reasons. Without knowing the specifics, it seems plausible that if Warhol used a reference work for creation of his Prince work, it is possible he did the same for creation of his Marilyn work. The implications, if so, can be considered elsewhere.

Third, it is important to note that the AWF Goldsmith matter to be decided by SCOTUS, with a decision expected sometime in 2023, ought to be confined to a copyright decision. Any Right of Publicity involved would be that of Prince, and it is assumed that the rightsowners of Prince’s publicity rights are not part of the matter. SCOTUS is good at keeping the issues it is considering confined to only that which is in front of the Court at that time. In other words, no matter what SCOTUS decides in the AWF Goldsmith matter, it is expected to be a copyright decision only.

Last, and despite the observation in the preceding paragraph, certain Right of Publicity tests and analytical constructs often borrow from the copyright realm. If the transformative use test happens to be recast or adjusted by SCOTUS, it would not be surprising to see future holdings considering the Right of Publicity in relation to a Comedy III-type transformative use test take into account what the Supreme Court finds in the Warhol Goldsmith matter concerning Warhol’s Prince series.