Observations on Forbes’ 2024 list of top-earning dead celebrities

Forbes’ annual list of top-earning deceased celebrities always presents an interesting gathering of the dearly departed. It can be especially interesting to compare the newest list to those of prior years. For example, this year, Michael Jackson comes in at $600,000,000, whereas last year, Jackson topped the list at $115,000,000. The various Michael Jackson-themed stage productions reportedly contribute significantly to Jackson’s earnings.

Also apparent in reviewing the 2024 list is the role that licensing of the Right of Publicity has played in contributing to the reported figures. Arnold Palmer’s licensed iced tea and lemonade by Arizona, and the alcoholic version by Molson Coors, shows just how profitable a personality-branded beverage line can be: $14,000,000 in 2024. Whitney Houston’s $13,000,000 is aided by a licensed slot machines.

Though a frequent citing on prior lists, J.R.R. Tolkien is not on the 2024 list, but fellow authors Charles Schulz and Dr. Seuss continue as perennials. Inevitably, when a surprise death occurs, that person often will appear on the list for at least a year. Paul Walker, Nipsey Hustle, Tom Petty, and Juice WRLD all made the list for a year or even two after passing, but have not been seen since. This unfortunate distinction goes to Matthew Perry in 2024. The circumstances of his passing may add a bit of sustained attention to his premature passing, and his memoir also provides a contribution to his reported $18,000,000.

One-time sales of catalogs or assets can also either rocket the numbers upward, or put a person on the list for one year such as 2023’s Ray Manzarek. This year, it seems likely Ric Ocasek will be in this category with a reported $45,000,000 sale of his interest in his music catalog to Primary Wave.

Forbes’ methodology includes looking at sales and streaming figures, licensing, acquisitions or sales, or any other sources between the period of October of the prior year through September of the current year. Forbes also reportedly utilizes data from Luminate, and considers input from those in the industries.

Here’s a link to the 2024 list: Forbes 2024 Top-Earning Deceased Celebrities

USPTO Roundtable on Right of Publicity, NIL, and Artificial Intelligence

A USPTO roundtable will take place on August 5, 2024 on the topic of Right of Publicity and Artificial Intelligence. USPTO AI Right of Publicity roundtable link The program is called Protecting NIL, Persona, and Reputation in the Age of Artificial Intelligence and will be livestreamed at this link: livestream link for USPTO AI Right of Publicity roundtable

With credit to the USPTO link above, the queries posed for the roundtable consist of:
1. How does the use of unauthorized NIL content harm individuals? Does AI technology exacerbate the creation and use of unauthorized NIL content and harm to individuals? If so, how?
2. How can AI be used as a legitimate and constructive tool in circumstances where individuals grant permission to a third party to use their NIL?
3. Do technological mechanisms or protocols currently exist to identify AI-generated NIL content, to prevent or deter unauthorized AI-generated NIL content, or to remove unauthorized AI-generated NIL content after it has been released? What other types of mechanisms or protocols exist, or should exist, to identify AI-generated NIL content or address unauthorized NIL content?
4. Currently, NIL is primarily protected via state law. In addition, some Federal statutes also address certain misuses of NIL. For example, the Lanham Act includes a provision—15 U.S.C. 1125(a)—that can be used to bring a Federal cause of action in certain circumstances involving NIL misuse. Are current legal protections for NIL rights sufficient? Why or why not?
5. There have been calls for a new Federal law to address unauthorized use of NIL content, including content generated by AI. Should Congress create a new Federal law to protect NIL? If so:
(a) Should current state NIL laws, such as state right of publicity laws, be preempted if a new Federal NIL law is enacted?
(b) What key elements should be incorporated in a new Federal NIL law?
(c) Should any new Federal NIL law protect against all unauthorized replicas of an individual’s NIL or focus on unauthorized AI-generated replicas?
(d) Some state laws addressing NIL protect only well-known individuals. Likewise, many Federal circuit courts require a showing, among other elements, that a plaintiff is famous or recognizable by the public in order to succeed on a claim under 15 U.S.C. 1125(a). Should this requirement of fame or recognizability be included in a new Federal law protecting NIL rights? Why or why not?
(e) Should a new Federal law prohibit non-commercial uses of unauthorized NIL content, such as political deep fakes and revenge pornography?
(f) What types of enforcement mechanisms should be included in any new Federal NIL law?
(g) What elements should be included in a new Federal NIL law to help ensure it does not become obsolete due to rapid changes in AI technology?
(h) Section 230 of the Communications Decency Act states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Section 230 also expressly provides that “[n]othing in this section shall be construed to limit or expand any law pertaining to intellectual property.” Should any new Federal NIL law be considered an “intellectual property law” for purposes of Section 230 of the Communications Decency Act?
(i) How should Congress address First Amendment considerations in any new Federal NIL law?
(j) Should any new Federal NIL law be incorporated into the Lanham Act?
6. What limits, if any, should be placed on the voluntary transfer of rights concerning NIL to a third party? For example, should there be limits on the duration of such transfers?
7. Questions 1-6 above relate to individuals’ NIL. How should these questions be answered in the context of individuals’ and creators’ reputations?

Hopefully, this roundtable will be a balanced and fair exploration of these topics. The Right of Publicity often lacks a unified voice of support because it is inherently a person-to-person proposition; in contrast, it is opposed by industries, unions, and lobbying arms, or individuals who sometimes seem quite separate from the perspective that only comes from actually working with affected parties.

Regarding point five, the prospect of any Federal Right of Publicity statute must not lose the ground gained over the last 120 years. My hope is that the USPTO’s August 5 roundtable presents a balanced discussion on this critical topic.

Apparently, a transcript and recording of the event will be available after the livestream at this link: Transcript for USPTO AI Right of Publicity Roundtable

Paul Newman’s daughters secure temporary injunction against Wet Brush license

The daughters of late actor Paul Newman secured a temporary injunction against Wet Brush hairbrush inspired by Paul Newman. Here is a link with more details: Paul Newman’s daughters secure injunction against Wet Brush and use of Newman’s Right of Publicity on non-food products It appears the product was licensed by Newman’s Own Foundation, so the dispute may be more involved than a traditional unauthorized use. Here is a link to the product announcement: Wet Brush inspired by Paul Newman
It also appears that a Connecticut action was filed by Newman’s daughters against the Foundation, in relation to operational decisions or criteria that may have been in place to govern or limit the kinds of products Paul Newman intended to allow. Here is a link with more information to the 2022 action: Paul Newman’s daughters file action against Newman’s Own Foundation
It is not clear the degree to which the latest news and the prior action are connected. Paul Newman was an advocate for Right of Publicity recognition and testified in support of a Connecticut legislative effort to enact a Connecticut Right of Publicity law, and expressed concerns about technology allowing digital creations without the involvement of the person in question.

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

ELVIS Act amends Tennessee Right of Publicity law with AI provisions

Tennessee’s Right of Publicity statute has been amended to provide broader provisions against artificial intelligence. Specifically, the amendment fortifies the concept of voice and the vulnerabilities AI could take advantage of if left unchecked.

Here is a link to the amendment: Tennessee ELVIS Act amendment

And here is a link to the Recording Academy’s announcement:
Recording Academy ELVIS Act announcement

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

Is #Hollywood Accounting trending yet?

SCOTUS Prince ruling against fair use in Goldsmith Andy Warhol case may connect to upcoming AI issues

As has been well-documented, the United States Supreme Court recently ruled in favor of photographer Lynn Goldsmith in finding that Andy Warhol’s Prince series was not a transformative use of Goldsmith’s photograph under fair use analysis. As it pertains more directly to the Right of Publicity, it is interesting to note that in Comedy III, Warhol’s Marilyn was the cited example of a transformative work. Be that as it may, in light of fast-developing discussions pertaining to Artificial Intelligence (AI), the SCOTUS Warhol ruling may provide support for the argument that AI creative output is a derivative work of the original. We’ll see.

Recent AI and deep-fake activity

Not that it needs to be demonstrated, but recent AI and deep-fake developments further demonstrate the need for meaningful Right of Publicity recognition.

AI-generated a “new” song presented as Drake and the Weeknd. Read more on this link: AI Drake the Weeknd song

Deep-fake technology is taking centerstage in a recently filed suit in California. Read more on this link: Kyland Young et. al. v. Neocortext Inc.

PSA: watch for the Right of Publicity in action in Super Bowl commercials

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

Louisiana passes Right of Publicity statute, effective Aug. 1, 2022

Louisiana has passed a Right of Publicity statute providing, among other things, 50 years of postmortem recognition. The statutute is designated “the Allen Toussaint Legacy Act” after the notable musician who died in 2015. Here is a link to the statute: Louisiana Right of Publicity statute

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

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.

“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.

Mel Gibson and Miel Gibson honey

I’ve seen some commentary on Mel Gibson’s issuance of a letter to the person behind a Chilean honey branded “Miel Gibson.”  Here’s a link to more coverage of the story:  https://www.abc.net.au/news/2020-08-15/mel-gibson-threatens-to-sue-chilean-honey-maker-over-image-use/12562438

To date, the developments consist of a letter being issued.  No lawsuit has been filed.  The letter seems to indicate a willingness for the Chilean business person to continue to some extent, but requests his image be removed.  Reportedly, after the recipient shared the letter online, her social media grew “exponentially.”

There’s no question that the product name and packaging ties to Mel Gibson.  For those who don’t like the contents of or even issuance of the letter, I would ask “what would you advise be done?”

Jason Mraz lawsuit illustrates important takeaways

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:

1. Social media is advertising.
2. 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.

Larry Bird mural presents interesting scenario for IP analysis

Not that it would happen, but I can imagine providing the scenario in the following link as a law school exam:  Larry Bird mural

https://www.msn.com/en-us/sports/nba/larry-bird-wants-tattoos-removed-from-street-artists-mural-of-him/ar-AAG5jpx?ocid=spartanntp

It does not appear headed towards legal action, but hypothetically, how could this go?  On the copyright front, is it a fair use?  A derivative work?  Does adding tattoos that Bird obviously does not have change the copyright analysis?

On the Right of Publicity front, or perhaps on the privacy front, what issues exist?  Is it a commercial use?  Is it protected by statute?  Are there issues involved here that sway the analysis in one direction or the other?

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

Beyonce suit against Feyonce knockoffs illustrates need for Right of Publicity distinct from trademark

A Judge recently denied Beyoncé’s request for injunctive relief against a Texas company selling a range of products using “Feyonce.”

Apparently, the Feyonce pun is based on the proximity to the word fiancé.  The Judge’s ruling, in summary, is that there was not a sufficient showing of potential confusion among customers that Feyonce was infringing Beyoncé’s trademark rights.

Thus, the need for Right of Publicity as a distinct form of intellectual property, that trademark does not adequately address, is illustrated yet again.

Here’s a link to more information on the ruling and the case:  Beyonce Feyonce Lawsuit

https://www.reuters.com/article/us-music-beyonce-lawsuit/no-injunction-for-beyonc-over-feyonc-knockoffs-u-s-judge-idUSKCN1MB38C

Sounds like a Right of Publicity valuation expert is needed in Michael Jackson IRS dispute

Interesting Bloomberg article dated 2/1/17 covering the dispute over the valuation of Michael Jackson’s estate.  “The IRS claims Jackson’s should have been valued at $434 million. The estate claims that it was worth a mere $2,105.”  Sounds like a case for a Right of Publicity valuation expert.  Here’s a link to the Bloomberg article:   Bloomberg: Michael Jackson estate valuation

60 Minutes “A Living For the Dead” updated segment includes Luminary Group

The Right of Publicity was part of 60 Minutes’ season premier episode on Sunday, September 27, 2009, in a segment captioned “A Living For The Dead” which, in updated segments, included reference to Luminary Group and the celebrity clients it represents.  I’ve been contacted concerning inaccuracies that the story conveyed.  Mostly missing from the story was the idea that representing deceased personalities, in conjunction with the heirs of those personalities, involves an effort to protect and further the legacy of that person, and in many cases the causes which were important to him or her.  It isn’t just about money, as the angle of the story seemed to emphasize.  There were a few missed opportunities to enlighten the public of the importance of the right of publicity and the work that at least some put into representing departed legends.  Here is a link to the CBS story:  http://www.cbsnews.com/video/watch/?id=5345034n