Rights of Publicity, Et. Al.


GET CLE CREDIT for this episode.

  • Dick v. Google
  • Vanessa Hudgens nude photos
  • Taco Bell domain name issue,
  • and more


  1. Estate of Philip K. Dick vs. Google –
    Trademark claims re “Nexus One” branding for mobile phone device

2. Vanessa Hudgens claims copyright in nude photos of herself?

3. Yo Quiero Domain Name – Yum Brands (Taco Bell) v. Nelson Wellness & Therapy Center

UDRP domain name dispute over DriveThroughDiet.com Arbitration
award for Defendant.

  • Taco Bell acquired www.drivethrudiet.com prior to the campaign launch, but did not acquire www.drivethroughdiet.com, a domain owned by a Georgia weight loss center.
  • Yum! Brands, the parent company of Taco Bell, filed a UDRP Bad Faith action to acquire the Georgia weight loss center’s domain name.
  • In 2008 Yum! Brands acquired the Drive Thru Diet trademark from a third party. Until December 21, 2009 the www.drivethrudiet.com website read “under construction.”
    • To be successuful on an UDRP bad faith/cybersquatting claiming the following factors must be met:
      • Domain name in question is identical or confusingly similar to a trademark in which Complainant has rights
      • Respondent has no legitimate rights/interests in domain name
      • Domain name has been registered and used in bad faith.

4. Recent Music Industry Filings
    1. BMI v. T-Mobile – complaint re ringback tones.
      • T-Mobile provides a service for a fee that
        allows users to play a song in place of a ring sound (“musical ringback
        tone service”), which BMI claims is a public performance that requires
        a license.
      • what is the scope of “public performance”?
        • anything that might reach another person?
        • something that the general public is exposed to?

    2. UMG v. Grooveshark

5. Schaffel v. Fox News

  • Schaffel, a former adviser to Michael Jackson, owns the copyright
  • Fox claims fair use
  • is this “hot news” (timeliness is where it gets its value)?
  • suit over unauthorized airing of footage from 2003 interview with Debbie Rowe following death of Michael Jackson.
  • Is this Fair Use?
  • Is Newsworthiness enough to trump copyright holders’ rights?

6. Marvel sues Jack Kirby Estate to invalidate copyright termination notices

7. “Letters to Juliet” Case

  • Story. For the past 100 years, in response to Shakespeare’s Romeo and Juliet, visitors to a Franciscan monastery in
    Verona have left letters to Juliet seeking love advice. Giulio
    Tamassia began answer these letters and then formed Club di Giulietta to help.
  • Ergoarts license. Ergoarts Inc. and Ellen Rigas Venetis purportedly obtained exclusive rights to Giulio Tamassia.
  • Ergoarts, Inc. produced the film “Songcatcher” in 2000
  • Gary Winick shot another film, Letters to Juliet, based on this historical story. Now, Summit wants the court to declare that their film doesn’t violate any of Ergoarts rights.
  • Declaratory judgement? Now Summit is asking a New York district court to declare that Winick’s “Letters to Juliet” doesn’t violate copyright, privacy rights, publicity rights, trademark, contract, nordoes it tortiously interfere
    with any contractual relationship between ErgoArts and the Club di Giulietta.
  • Facts aren’t copyrightable. To the extent that the story told by Songcatcher and both versions of Letters to Juliet are based on facts, the copyright claims are probably
  • Plots usually are only thinly copyrightable. General plot themes like “love” etc. are generic/not original –> not copyrightable. To the extent that the story of Songcatcher relies on facts and generic elements, it isn’t protected by copyright.
  • Summit Entertainment LLC v. Ergoarts Inc., 1:10-cv-00193-JSR – Complaint
  • http://www.bloomberg.com/apps/news?pid=20670001&sid=aXUcYdcWTm.8
  • http://thebookstew.blogspot.com/2009/02/letters-to-juliet-by-lise-friedman-and.html
  • http://www.thresq.com/2010/01/what-would-william-shakespeare-say-about-this-lawsuit.html
  • 9. Right of Publicity

  • The right of every individual to control the commercial use of his or her identity.
  • Rationale is that if profit is derived from use of a person’s name, image, likeness, voice, etc., the person should profit as well.
  • The right to prevent unauthorized third parties from commercially using a
  • person’s identity — their name, likeness, signature, voice, or other indicia of a person’s identity. (Restatement of Torts “RS” § 46, 47).Specific definitions vary because only
  • embodied in state law. Typically, the elements are (RS § 46)
  • Defendant used the plaintiff’s identity
  • to the defendant’s advantage,
  • This property right is not related to likelihood of confusion, but focuses on protecting a person’s indiciaof identity, which lasts beyond the celebrity’s life.
  • relief under RS §§ 48 and 49
  • The First Amendment protects news reporting, political/religious, commentary, entertainment, works of non/fiction, or advertising that is incidental to such uses.
  • Statutes – State statutes recognizing a right of publicity or analogous right include
    the following:
  • California CAL. Civ.C. §§ 990; 3344
  • Florida FLA. S.A. § 540.08
  • Kentucky KY. R.S. § 391.170
  • Massachusetts MASS. G.L.A., ch. 214, § 3A
  • Nebraska NEB. R.S.A. § 20-202
  • Nevada NEV. R.S.A. §§ 598.980-88
  • New York N.Y. Civ.Rights L. §§ 50-51
  • Oklahoma OKLA S.A., tit. 12, §§ 1448-49; tit. 21, §§ 839.1-839.3
  • Rhode Island R.I. G.L.A. §§ 9-1-28; 9-1-28.1
  • Tennessee TENN. C.A. § 47-25-1101 et seq.
  • Texas TEX. Prop.C. § 26.001 et seq.
  • Virginia VA. C.A. § 8.01-40
  • Wisconsin WIS. S. § 895.50
  • Larry Flynt v. Flynt Media Corp.

  • Larry Flynt (Hustler/Hustler.com/Hustler Casino) accused his former employees and nephews, Jimmy and Dustin Flynt, of trademark infringement and misappropriation of his rights of publicity based on Flynt Media productions that confuses customers and
    tarnishes his famous name with inferior adult entertainment.
  • FlyntNation.com, following the guidelines set forth by the U.S. District Judge, was
    launched in September 2009:
  • the younger Flynts must include theirfirst names to prevent customer confusion,
    included in the banner at the top of the site
  • Larry Flynt will probably have to pay the nephews’ attorneys’ fees incurred defending these rights of publicity claims under § 3344, particularly because Larry allegedly fired their father in retaliation for the sons’ use of the family name.
  • Larry C. Flynt v. Flynt Media Corporation, et al., CV 09-00048 AHM, CV09-8796 JC (C.D. Cal. 2009)
  • The jury found that the use of the last name FLYNT alone was likely to confuse consumers as to the source of the adult related material, but did not agree that any rights of publicity
    were violated.
  • On January 7, 2010, Judge Howard granted a Order on Ex Parte Application to Stay Order of Permanent Injunction Pending Motion to Alter or Provide Relief.
  • http://www.iptrademarkattorney.com/2009/12/trademark-larry-flynt-trial-jury-nephews-image-right-publicity-l
  • Read More: Perez Hilton: Flynt Vs. Flynt: Larry Wins! http://perezhilton.com/2009-12-12-flynt-vs-flynt-larry-wins#ixzz0dDjohwml
  • http://www.latimes.com/news/local/la-me-flynt9-2009dec09,0,4809318.story
  • http://www.newser.com/story/47210/bad-porn-spurs-flynt-v-flynt.html
  • http://perezhilton.com/2009-12-12-flynt-vs-flynt-larry-wins
  • Court Report on Determination…
  • Docket Listing
  • Blog Post by Flynt Nephews
    • Chuck Yeager is suing Cingular over a press release that referenced Mr. Yeager’s feat in breaking the sound barrier when Cingular announced it’s new emergency preparedness program.

    “Nearly 60 years ago, the legendary test pilot Chuck Yeager broke the sound barrier and achieved Mach 1. Today, Cingular is breaking another kind of barrier with our MACH 1 and MACH 2 mobile command centers, which will enable us to respond rapidly to hurricanes and minimize their impact on our customers.”

    • The court denied Cingular’s Motion for Summary Judgement because the defendant: (1) failed to dissolve all triable issues of fact over whether the use
      implies endorsement or (2) establish as a matter of law that the nominative fair use defense applied.
    • where is the boundary between 1st Amendment speech and commercial speech?
    • http://www.lexology.com/library/detail.aspx?g=e02d23cc-2673-4749-a5a2-295c74df402a&utm_source=Lexology%20Daily%20Newsfeed&utm_medium=Email&utm_campaign=Lexology%20subscriber%20daily%20feed&utm_content=Lexology%20Daily%20Newsfeed%202010-01-22&utm_term= www.lexology.com/library/detail.aspx?g=767eaef6-699f-4b85-a7f2-cccb3a84c956&utm_…
    • Court’s ruling against Defendant’s MSJ where a celebrity’s name is used in a commercial, there are triable issues of fact regarding whether such use implies endorsement and the defendant failed to meet its burden in establishing that the nominative fair use defense applies as a matter of law.

    “Defendant used plaintiff’s name and accomplishments to support its own product, specifically comparing plaintiff’s feat in breaking the sound barrier to defendant’s technological advancements. While not featured in a television commercial, the deliberate, closely-tied analogy in a press release directed to create positive associations with defendant’s product is sufficient to raise a triable issue of fact regarding implied endorsement.”

    Jordan v. Jewel Food Stores, Inc. and Jordan v. Dominick’s Finer Foods, Inc.

    In 2009 Two Chicago area grocers created separate ads which ran in the Sports Illustrated commerative issue celebrating Jordan’s career.

      • Shaquille O’Neal has now filed a suit against an online retailer for using the “Shaqtus” nickname.
      • http://blogs.findlaw.com/celebrity_justice/2010/01/shaq-attack-shaq-sues-for-infringement-of-trademark.html
      • It is Mr. O’Neal’s “The Big Shaqtus” nickname that is the crux of this lawsuit. The defendant operates a website that features a large cactus mascot who looks like Mr. O’Neal. The mascot also wears an orange jersey with the number 32 which was Mr. O’Neal’s number when he played for the Suns. The lawsuit contends that the defendant sent a letter to ESPN offering to sell them the “Shaqtus” trademark. When ESPN countered that it received permission to use the “Shaq” trademark from his licensing company, it also asserted that the defendant was infringing on the basketball player’s trademark.
      • When Mr. O’Neal’s licensing company requested that the defendant stop using the trademark and transfer their two domains, the defendant refused. The lawsuit claims trademark infringement, dilution, unfair competition, violation of the basketball player’s right of publicity, right of commercial use of his name, and cybersquatting

    2 Replies to “Rights of Publicity, Et. Al.”

    1. Jay Moffitt

      I found the answer in copyright circular http://www.copyright.gov/circs/circ1a.html

      Down towards the bottom, under notable dates is listed February 15, 1972, “Effective date of act extending limited copyright protection to sound recordings fixed and first published on or after this “.

      A copyright website I visited distinguished this as “Circle (P) protection does not flow from an original fixation that formerly was the subject of common law or State protection.”

      That would seem to be the reasoning why the pre-1972 case would be chosen to be pursued through the state courts.

      And obviously, I enjoyed the podcast and learned a great deal.

    Comments are closed.