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

Presidential bids, Donald Trump, and the Right of Publicity for public figures

With Donald Trump recently announcing that he would not run for President in 2012, I thought about a popular topic concerning the right of publicity of public figures and politicians.  This topic (as well as this website) was recently discussed on a t-shirt website forum  (http://www.t-shirtforums.com/general-t-shirt-selling-discussion/t153365.html#post913652) so I thought I’d elaborate somewhat on this topic.

Donald Trump is no stranger to the intellectual property rights surrounding his name, image, persona and identity.  He has registered trademarks on various aspects of his identity, and enjoys a vibrant licensing program ranging from Trump’s Signature Collection of clothing (suits, ties, cuff links, eyewear http://www.trump.com/Merchandise/Signature_Collection.asp) to Trump steaks (http://www.trumpsteaks.com/).  If Trump were to run for President (which I suppose he already has, to some degree), would he be forfeiting his right of publicity, and therefore his ability to prevent unauthorized, unlicensed products entering the marketplace? 

In short, no.  But it does get a bit more complicated for public officials to pursue unauthorized merchandise and advertising campaigns, even if they would have a legal right to do so.  Through my work on behalf of many public figures, ranging from Princess Diana and Rosa Parks to Jackie Robinson and General Patton, as well as a couple of former U.S. Presidents, I know that a certain amount of such activity has been tolerated.  President Obama seems to have responded to such activity more than any other President, perhaps also because he (or his family) has been used more than any other recent President.  Here is a news item concerning a casino billboard campaign with a President Obama lookalike:  http://southerngaming.com/?p=2562

Perhaps it is worth distinguishing between a person’s right of privacy and the right of publicity.  We are all generally familiar with the idea that when a person runs for public office, he or she gives up a certain degree of an expectation of privacy.  A corollary to this is the New York Times v. Sullivan “actual malice” standard for defamation of public figures.  This case instructs that because the famous person sought out elected office and has better access and means to the press in order to combat any inaccurate or potentially defamatory information, the standard for committing defamation is necessarily higher than that for private citizens.  Here’s a Wikipedia link to the New York Times v. Sullivan case:  http://en.wikipedia.org/wiki/New_York_Times_Co._v._Sullivan

This “actual malice” standard for elected officials is part of the mechanism for ensuring broad First Amendment privileges, and encouraging differing views, discourse and criticism of our public officials.  None of this means that those elected officials have simultaneously consented to becoming product lines or being featured in advertising campaigns for all manner of goods and services.  It may be that such products or advertising campaigns have an element of parody, which conceivably could serve as a defense to a right of publicity claim.  But most such products or advertising campaigns are simply an effort to sell more products or to promote a company’s goods or services.  This, then, is likely nothing more than commercial speech.  If the message is simply “buy our stuff” or “shop at our store,” and the inclusion of the public figure is nothing more than a scheme to attract attention, then the right of publicity can and generally will provide recourse for that public official. 

In many instances, pursuing a company who engages in what might constitute a right of publicity infringement may become more of a public relations issue than a legal issue.  Going after the company may give that company substantially more media attention, and may be portrayed in the press as that public figure trying to chase down infringers in order to make money.  It’s a bit of a dilemma for those who find themselves in such a position. 

I didn’t realize how much attention this topic has been given on this website until I looked back at prior entries:

Obama Got Osama:   http://rightofpublicity.com/obama-got-osama-products-hit-marketplace-reports-usa-today-anyone-want-to-take-a-shot-at-that-right-of-publicity-analysis

First Lady Michelle Obama and PETA ads:  http://rightofpublicity.com/peta-launches-new-ad-featuring-michelle-obama-without-first-ladys-permission

President Barack Obama bobbleheads:  Intentionally unflattering?  http://rightofpublicity.com/bobbleheads-intentionally-unflattering-or-a-symptom-of-the-product-category

The First Daughters:  Sasha and Malia Ty beanie baby dolls:  http://rightofpublicity.com/sasha-and-malia-dolls-now-its-not-just-the-president-being-infringed

President Obama merchandise continues:  http://rightofpublicity.com/president-obama-merchandise-continues

President Obama infringements?  http://rightofpublicity.com/president-obama-infringements