Rights of Publicity, Et. Al.
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GET CLE CREDIT for this episode.
- Dick v. Google
- Vanessa Hudgens nude photos
- Taco Bell domain name issue,
- and more
SHOW NOTES
-
Estate of Philip K. Dick vs. Google –
Trademark claims re “Nexus One” branding for mobile phone device- Nexus One, the name of Google’s new phone,
may be a reference to “Nexus-6” in Phillip K. Dick’s novel Do Androids Dream of Electric Sheep? and the film adaptation Blade Runner, which the late Dick’s daughter, Isa Dick,
says is a “clear infringement of our intellectual property rights.” - But what intellectual property rights?
- Endorsement issue?
- no trademark in the name, so how can there be
a trademark claim?- Lucas trademarked Droid
- Lucas trademarked Droid
- confusion between Dick and Google?
- no trademark in the name, so how can there be
- Publicity right issue?
- who would confuse the name or likeness of
Philip Dick with Nexus One?
- who would confuse the name or likeness of
- Copyright issue?
- Since short phrases and uninvented/old words
aren’t copyrightable, is a key element of the plot or this “character”?- the main character in Dick’s book is a bounty
hunter of androids, specifically the fugitive Nexus-6 model androids
- the main character in Dick’s book is a bounty
- Or would this use be considered fair use
because- purely referential?
- using the word for it’s original meaning?
- Or fair use because it’s “transformative”?
- commercial use, but purpose is
practical/useful - different medium, useful
- referential/literal use, very little in relation to the whole work
- unlikely to subsume market for original work, may add value
- commercial use, but purpose is
- Since short phrases and uninvented/old words
- Did these musicians get a license?
- GMS (Growling Mad Scientists) released a track named “Do Androids Dream
of Electric Sheep” - UK breakbeat DJ/producer 30hz has cited “Do Androids Dream of Electric Sheep?” as the source behind the title to his debut album “Electric Sheep”, released in 2007
- GMS (Growling Mad Scientists) released a track named “Do Androids Dream
- http://en.wikipedia.org/wiki/Do_Androids_Dream_of_Electric_Sheep%3F
- http://mashable.com/2010/01/06/nexus-one-phillip-k-dick/
- http://www.engadget.com/2010/01/06/philip-k-dicks-estate-lawyers-up-says-nexus-one-name-is-cle/
- http://www.cnn.com/2010/TECH/01/07/cnet.google.nexus.one.blade.runner/index.html
- tech.slashdot.org/story/10/01/07/0314220/Nexus-One-Name-Irks-Philip-K-Dicks-Esta…
- Nexus One, the name of Google’s new phone,
2. Vanessa Hudgens claims copyright in nude photos of herself?
- After moejackson.com released nude photos of Vanessa Hudgens, Hudgens registered copyrights in the photos claiming she took them herself, and sued for copyright
infringement. - Since whoever takes the picture owns the copyright, is it possible for the SUBJECT of a
photo to own copyright in the image?- Originality?
- Active control of the camera? Did she
fire the shutter? - Timer? Automatic photo every # seconds?
- Even possible with
a camera phone? - joint author/work?
- false registration
consequences?
- http://blog.ipfactor.co.il/2009/12/28/vanessa-hudgens-claims-copyright-in-decolletee-images-of-herself/
- http://www.nydailynews.com/gossip/2009/12/24/2009-12-24_vanessa_hudgens_sues_over_nude_pics.html
- http://www.metro.co.uk/showbiz/715618-disney-star-vanessa-hudgens-is-facing-more-naked-sex-picture-shame
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.
- To be successuful on an UDRP bad faith/cybersquatting claiming the following factors must be met:
- Arbitration panel denied Yum!’s request to transfer drivethroughdiet.com based on 3 factors:
1) Drivethrudiet.com was under construction until December 21, 2009; 2)
Yum! did not provide evidence of using their mark prior; 3) DRIVE-THRU
DIET was assigned to Taco Bell in October 2008, and there was no
evidence the Georgia weight loss center had registered and used their
domain in bad faith.http://domainnamewire.com/2010/01/18/the-biggest-loser-taco-bell-loses-case-for-drivethroughdiet-com-domain/ - Arbitration decision here.
-
- 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?
- T-Mobile provides a service for a fee that
- UMG v. Grooveshark
- Universal Music Group has sued music download service Grooveshark, alleging that the site is offering pre-1972 Universal recordings for free.
- sound recordings
were not granted protection under federal copyright law until
2/15/72- removes DMCA “safe harbor” defense (remove infringements after notice)
- only Common Law (State) protection prior to 2/15/72
- sound recordings
- new form of DMCA circumvention?
- if site X can filter out pre-1972 recordings from its catalogue, why can’t it do the same for post-1972 recordings?
- http://listen.grooveshark.com/
- http://news.cnet.com/8301-13526_3-10432132-27.html
- http://www.appscout.com/2010/01/universal_music_sues_groovesha.php
- EMI v. Grooveshark – settled in 10/2009
- Universal Music Group has sued music download service Grooveshark, alleging that the site is offering pre-1972 Universal recordings for free.
- BMI v. T-Mobile – complaint re ringback tones.
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
- notices sent after Disney announced it was acquiring Marvel.
- http://www.animationmagazine.net/article/11035#
- Marvel Entertainment filed a lawsuit to invalidate 45 copyright notices filed in September by the heirs of Jack Kirby, a comic book artist known for the Fantastic Four, Iron Man,
Thor, the Hulk and X-Men, because these are works for hire. - heirs of Siegal, co-creator of Superman, were successful in arguing not work for hire
- We discussed thisin the context of the John Steinbeck estate in Entertainment Law Update, Episode 6.
- This doc has all the relevant overview on the law and procedure of termination http://www.jdsupra.com/post/documentViewer.aspx?fid=918f6a4f-cb74-4837-8512-4503028c10ac
- Another case to watch involves Sherlock Holmes http://www.nytimes.com/2010/01/19/books/19sherlock.html
7. “Letters to Juliet” Case
Verona have left letters to Juliet seeking love advice. Giulio
Tamassia began answer these letters and then formed Club di Giulietta to help.
with any contractual relationship between ErgoArts and the Club di Giulietta.
meritless.
9. Right of Publicity
the following:
Larry Flynt v. Flynt Media Corp.
tarnishes his famous name with inferior adult entertainment.
launched in September 2009:
included in the banner at the top of the site
were violated.
oses-attorneys-fees-porn.html
- 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.
- Complaints filed December 21, 2009 in Cook County (IL) circuit court against Jewel Food Stores and Dominick’s Finer Foods alleging violation of right of publicity, false endorsement, false designation or origin, deceptive business
practices, and unfair competition. - Jordan, via his company, has a registered trademark for MICHAEL JORDAN in connection with product endorsements, Reg No. 1, 487, 719 and a registered trademark forthe number 23 in restaurant, bar and catering services (Reg No. 2, 547, 960).
- http://blogs.findlaw.com/celebrity_justice/2009/12/cheap-shots-michael-jordan-now-suing-two-grocery-stores.html
- Jordan V. Jewel Food Stores, Inc.
complaint here: http://www.chicagotribune.com/news/chi-jordan-jewel-link,0,6122533.htmlpage - Jordan V. Dominick’s Finer Foods, Inc.
-
- 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.”
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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.