The leading online Right of Publicity resource.

Is it okay for Antonio Brown to release a song called “Andrew Luck?”

February 19, 2020 No Comments »
Share this article:

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


Athletes’ tattoos, copyright, and who owns what

December 30, 2018 No Comments »
Share this article:

Article in the New York Times examining the issues presented by depicting athletes in video games, and the possibility that the tattoo artist retains an interest in their work (original work of authorship fixed in a tangible medium of expression).  Thus, a human, or skin, is now a tangible medium of expression.

Seems like a simple agreement at the point of origin would fix most of these issues going forward.

Link to the New York Times article:  NYT article on who owns what athlete tattoos and video games


Observations about New York’s Assembly Bill A.8155B

June 16, 2018 No Comments »
Share this article:

One has to marvel at the arguments being attempted in opposition to New York’s Assembly Bill A.8155B.  Here is a link to the bill:  New York Assembly Bill A.8155B

In coverage of the bill (in the Hollywood Reporter coverage, link below), the MPAA says one of the fatal problems with the bill is that it does not have limitations for First Amendment purposes.  Let’s shine the white-hot light of truth on such misinformation with a quick look at S.51 of the bill:

 §  51.  Action  for injunction and for damages.  ...  
    50    2. Right of publicity exceptions. For purposes of the right of public-
    51  ity, consent for use  of  another  individual's  persona  shall  not  be
    52  required, except as otherwise provided in subdivisions three and four of
    53  this section, when used in connection with the following:
    54    (a)  news, public affairs or sports broadcast, including the promotion
    55  of and advertising for a public affairs or sports broadcast, an  account
    56  of public interest or a political campaign;
        A. 8155--B                          5
     1    (b) in:
     2    (i)  a  play,  book,  magazine, newspaper, musical composition, visual
     3  work, work of art, audiovisual work, radio or television program  if  it
     4  is  fictional  or nonfictional entertainment, or a dramatic, literary or
     5  musical work;
     6    (ii) a work of political, public interest or newsworthy value  includ-
     7  ing a comment, criticism, parody, satire or a transformative creation of
     8  a work of authorship; or
     9    (iii) an advertisement or commercial announcement for any of the works
    10  described in paragraph (a) of this subdivision or this paragraph; or
    11    (c)  fundraising  purposes  by  not-for-profit  radio  and  television
    12  stations licensed by the federal communications commission of the United
    13  States, or by not-for-profit advocacy organizations if the  use  is  for
    14  commentary or criticism;
    15    (d)  use  of the right of publicity of a deceased individual where the
    16  licensee or successor in interest has failed  to  register  and  post  a
    17  claim of right under section fifty-h of this article, with the exception
    18  of the safe harbor period listed in subdivision seven of section fifty-h
    19  of this article, until such time as a claim of right has been registered
    20  and posted as required under such section.

Accuracy appears to be the first casualty in the fight against Right of Publicity recognition.  Claiming the First Amendment will be jeopardized and creative works stifled if the legislation is passed is such a popular refrain designed to make every legislator afraid to go against something as fundamental as the First Amendment, that it will be repeated even when the statute specifically contains exactly what it is alleged to lack.

Another observation is the attempt to characterize New York’s bill as something so revolutionary, something so dangerous, that the bill simply must be shelved.  New York’s legislature has been in almost a permanent state of considering this legislation.  Many other states have Right of Publicity recognition firmly in place, and so far, I’m happy to report the First Amendment, creative works, commerce, and freedom in general have not withered in those jurisdictions.  We might have heard about it if these popular, dire predictions actually ever occurred.

Another quick observation relates to the provisions in the bill addressing deep fake uses and digital recreation of a person.  On this point, I might just sit back and listen as the lobbyists attempt to argue against a baseline provision addressing the extreme abuses possible by way of deep fake uses and digital recreation.

Lastly, in the Hollywood Reporter’s coverage, it is suggested that A.8155B isn’t really needed because the Lanham Act, false endorsement and privacy rights already provide adequate recourse.  They  don’t.  That statement would only hold true for the small number of people so famous that they can actually support a trademark claim.  Suggesting that the Lanham Act and privacy rights are a sufficient substitute for the Right of Publicity is simply inaccurate, and this point ought to be beyond debate.  The article says it is not attempting to take offer competing interpretations and that both sides are probably guilty of overreaching, but then comments only on supporters of the bill, with no commentary or insight on how the studios and opponents to the bill may also be overreaching.  Here is the link:  Hollywood Reporter coverage on New York’s Assembly Bill A.8155B

In the ugliness of lobbying, it is apparent that being right, or even knowing what the legislation actually says, is not really an important detail.


Muhammad Ali lawsuit against Fox for Super Bowl LI promo

October 11, 2017 No Comments »
Share this article:

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:


Recent Posts

In The News

Archives

Feeds