Champs’ publicity-rights claim slapped down

With federal copyright laws holding sway, online sales are acceptable of prized photos of basketball players, their games, appellate judges find

Patrick Maloney, a hot-shooting guard who helped catapult his 2001 team to Catholic University’s first-ever Division III national championship, has become a school legend for his elite decision-making on a basketball court.

But he, teammate Tim Judge, and other Cardinal players made bad calls in courts of law when they and their attorneys sought to contest a decision by their alma mater, the NCAA, and an online vendor, T3Media and its website, to allow the public to download pictures of them and their games, especially their now 16-year-old upset victory over William Paterson at the Salem (Va.) Civic Center, a federal appeals court has decided.

On behalf of themselves and other college jocks, Maloney, Judge, and other CU Cardinals had asserted that state right-of-publicity laws gave them a say about the uses of the disputed shots, and, more importantly their likenesses and identities.

But the U.S. Court of Appeals for the Ninth Circuit, in Maloney v. T3 Media, Inc., cried foul, blowing the whistle under First Amendment-protecting anti-SLAPP statutes, and finding that the Federal Copyright Act pre-empted their state publicity rights claim. Here’s an instant replay of how these ballers lost this key round of their legal game. (more…)

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Is an icon’s image too generic to trademark?

Bitter battle by Marilyn Monroe estate to protect her legacy may have unforeseen consequences for celebrities

It’s common these days for celebrities to trademark their names and properties attached to them (yes, you Beyonce, and all of you in the Kardashian clan). Her estate has tried to create comparable legal protections for Norma Jean Mortenson, the sliver-screen legend better known as Marilyn Monroe.

But a U.S. District Court in Manhattan has cast a long shadow over the movie star’s intellectual property rights, raising the possibility—not just for her and her estate but for other pop culture icons —that a megastar like Monroe may be too generic for protection.

The issue is far from decided, and, in a 51-page opinion and order, U.S. District Judge Katherine Folk Pailla has observed that, “What began in 2012 as a declaratory judgment action has transmogrified into a sprawling conflict raising issues of trademark, antitrust, and state business law.”  So, as Marilyn herself might aver: Sugar, what’s behind this Monkey Business that could Shock Miss Pilgrim, in which Something’s Gotta Give, some parties don’t seem to be Gentlemen [who] Prefer Blondes, and, the court hopes, won’t turn into a Seven Year Itch?


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Filmmakers’ win with a First Amendment blast

With everyone from Hollywood producers to video game makers poring over the headlines for compelling people stories to convert into hot properties or products, California’s right of publicity law long has sought to: recognize that an individual’s identity holds economic value; and protect celebrities and average folk alike, so they can control and profit from their name and likeness. The Golden State has been joined by others in crafting publicity rights that have protected notables like Michael Jordan  and Aretha Franklin.

But the U.S. Court of Appeals for the Ninth Circuit has just clarified what happens when state publicity rights clash with First Amendment claims, especially in an instance involving a transformative retelling of the life of an ordinary individual thrust into great events of the time.

The case involved Jeffrey Sarver, a onetime master sergeant, bomb disposal expert, and Iraq war veteran. He claimed that the main character in The Hurt Locker, as played by Jeremy Renner, was based on his life. As The Washington Post reported: “Sarver sued, claiming the film violated his ‘right of publicity’—his right to control the commercial use of his identity (here, not his name or likeness but elements of his life story).”

The appellate court disagreed, finding the First Amendment barred Sarver’s claims because the Oscar-winning film was transformative and did not just piggyback on his story nor its economic value.  As federal judge Diarmuid O’Scannlain wrote for the appellate court: “[i]n sum, The Hurt Locker is speech that is fully protected by the First Amendment, which safeguards the storytellers and artists who take the raw materials of life — including the stories of real individuals, ordinary or extraordinary — and transform them into art, be it articles, books, movies, or plays.”

How did the appellate court come to blow up Sarver’s claims?


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Queen of Soul takes on new role: doc blocker

This guest post was written by Sylvanna Le, a 2L enrolled in Southwestern Law School’s Entertainment Law and Web 2.0 course:

She’s a papal headline performer and has been crowned by critics as the Queen of Soul. But did a federal judge in Colorado accord singer Aretha Franklin excessive r-e-s-p-e-c-t when he recently issued a court order blocking a noted film festival from screening a documentary about the Motown legend? Yes, the judge also enjoined the producer of the work, who has been in long running and unsuccessful negotiations with Franklin for permission to use her name and likeness.

Now, however, concerns have been expressed that this dispute, which since has affected film festivals in Telluride, Colo., andToronto, and a potential showing in Los Angeles, has transformed into a potentially precedent-setting, First Amendment issue of prior restraint. It could pose a potential significant problem for those who screen movies at events and else wise. Although the parties have tried to step back from the legal cliff, it’s worth a deeper dive into this dispute. (more…)

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Jordan’s rebuke for grocer’s ad? $8.9 million

michael-jordan-career-20-e1421440457181He has insisted all along the way that his long legal battle was all about the power and pride of his name and not about a monetary victory. But even in Los Angeles, almost any litigator would be pleased to be part of the recent, much publicized $8.9 million federal court jury award to basketball legend Michael Jordan in his right of publicity suit against Dominick’s, a now-defunct grocery chain in Chicago that published an advertisement in a Sports Illustrated  commemorative edition using the superstar’s likeliness. (more…)

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Q.-&-A.: Bert Fields on post-mortem rights

Bertram FieldsGGcomWhen legendary Entertainment lawyer Bert Fields recently addressed the Harvard Law Association at the Beverly Hills Bar, he, of course, brought down the house, delighting his audience with his comments on an array of topics. His views on a particular subject resonated for the editors of this blog, because it has arisen in posts before (see here and here): Are there legal rights that need protecting for deceased entertainers? Fields was kind enough to answer a few questions posed by email by Biederman Blog Editorial Board member Jessica Villar regarding this topic:

Question—When you spoke recently to the Beverly Hills Bar, you mentioned new kinds of entertainers’ rights, particularly as these might apply to their post-mortem performances as what you called synthespians. Were you specifically addressing the advent of holographic characters performing entertainers’ known works in shows? Or are there other technologies you had in mind?

Answer—I was talking about buying the rights of living performers to use their computer generated images to make new movies or perform in new concerts when they’re too old to do so or after their deaths.  Synthespians are a stage later.  They are computer generated actors and performers who will appear human, but are not.  They never die and when the audience tires of them, we create new ones. (more…)

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In big-dollar publicity rights bid, athletes lose

college sports

Onetime college athletes seemed to have gotten a big win over broadcast networks and video game makers last year when a federal judge in California ruled that the NCAA could not keep athletes from licensing their own names and images. But a different legal play hasn’t scored in similar fashion with a federal court in Memphis.

There, a group of Tennessee athletes argued that they had publicity rights under common law and should be compensated for playing in televised games. Wrong call, said U.S. District Court Judge Kevin Sharp, who ruled that the players failed to present any valid theories about their publicity rights under Tennessee common law. State law prohibits use of a person’s name or likeness for advertising purposes but  allows their use for sports broadcasting.

The athletes had brought both state and federal claims but the broadcasting defendants, including ESPN, ABC, CBS, and NBC, were granted their motion to dismiss. With the stakes so high,  it’s worth a little play-by-play in the running contest among jocks, broadcasters, and video game makers. (more…)

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In latest twist in ad suit, Jordan tastes defeat

As the San Antonio Spurs and Manny Pacquiao could well advise basketball legend Michael Jordan, even champions don’t win every contest. Jordan himself discovered this off the hard courts and in a court of law recently, when a federal judge in Chicago, dealing with matters from a case remanded to him by the U.S. Court of Appeals for the Seventh Circuit, rejected the superstar’s motion for summary judgment in a lawsuit over a grocery ad that seemed to salute him. (more…)

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Privacy event to address celebrity issues, rights

Neville_L_Johnson_JJLLPLAW_2015DroozDeborahGary_BostwickProminent scholars, lawyers and government officials will gather on April 17 at Southwestern for the Second Annual Online Privacy Conference, presented by the law school’s Donald E. Biederman Entertainment and Media Law Institute. Participants will explore a spectrum of privacy issues, including, notably for Entertainment Law practitioners, a session on  Celebrity and Privacy/Publicity Rights. (more…)

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Appeals court stands up for Marley heirs’ rights

MarleySelect musicians cross genres and generations and their inspirational messages resonate widely, such as the great Bob Marley‘s mantra to “love the life you live, live the life you love.” While the late reggae master could wax philosophic with the best of them, the U.S. Court of Appeals for the Ninth Circuit recently offered a pragmatic view in protecting part of Marley’s legacy: The appellate judges affirmed a ruling by U.S. Senior District Judge Philip M. Pro in a case brought on by Fifty-Six Hope Road Music, which is owned by Marley’s children, holds the rights to his persona, and had sued A.V.E.L.A., Freeze, and JEM over T-shirts and other merchandise emblazoned with his image. In his written opinion for the appellate panel,  Judge N.R. Smith discussed important factors about the Lanham Act and celebrities’ Right of Publicity while also upholidng the award of more than $1.5 million to Hope Road in damages, wrongful profits by defendants, and attorney and other fees. (more…)

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