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.
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.
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 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 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
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
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.
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.
Thought everyone should know.
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.
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
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.
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?”
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.
Not that it would happen, but I can imagine providing the scenario in the following link as a law school exam: Larry Bird mural
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?
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
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
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