Update on California Postmortem Right of Publicity

I just published a guest blog entry at the NYSBA Entertainment, Arts and Sports Law Section blog on a recent California bill which would extend postmortem right of publicity to persons who became famous because of their deaths.

My Favorite Director and My Favorite Law Combined!!

Wel, American Apparel and Woody Allen have settled, depriving us of very interesting legal reading material, oh well...

In a statement read yesterday in front of the Court House, Mr. Allen said "I sued American Apparel because they calculatingly took my name, my likeness, and image and used them publicly to promote their business" and this settlement is "the largest ever paid under the New York Right to Privacy Law."

Paris Hilton and Trademark Law, continued

It is strange to see that a picture of Paris Hilton wearing a Paris Hilton tee shirt would end up on a New York Times blog, and would provoke so many comments. She trademarked her name, as early as 2004, why not wear the tee-shirt? She also trademarked Can Can Paris Hilton, and Paris Hilton's My New BFF, and That's Hot, and sued Hallmark for trademark infringement in 2007. The case has reached the Appeal Court, and the 9th Circuit is hearing arguments.

Hallmark's opening brief argues that the card "comments on Hilton’s broken-record use of the phrase “that’s hot” by transforming it from a metaphorical barometer of style into a literal warning of the high temperature of a plate of food." Hallmark also argues that "Hilton’s privileged and public lifestyle, her physical appearance, her contempt for serving the public and her metaphorical use of the trite phrase “that’shot” – all facts admitted by Hilton – starkly contrast with the Card’s cartoon caricature of her, set in a decidedly unprivileged and “nightmare” environmentwhere she is “serving the public” and uttering the words “that’s hot” solely for their literal connotation." How to strip That's hot! from secondary meaning (aka"metaphorical barometer of style") to reveal its bare, "literal" description of food temperature ...

Coolness Bought Off the Racks

Ever heard the phrase "It's all about (insert source of inspiration) this season" on the style channel? Well, Steve McQueen inspired Belstaff USA Winter 07 collection. So far, so good. Well, not exactly. Steve McQueen's heirs are suing the fashion company, claiming that they are using the name of the later actor without permission in order to promote their products.

Steve McQueen wore Belstaff. Belstaff had manufactured the motorcycle jacket worn by Steve McQueen in Trailmaster, and bought it back recently in an auction, showcasing it in the company's museum in Milan.

The heirs filed suit in the U.S. District Court of Manhattan , claiming that the company is using the name and likeness of Steve McQueen.

Forbes added Steve McQueen to its top-earning dead celebrities list last year , with $ 6 millions earned between October 2006 and October 2007.

Obviously, the actor can still help selling mens clothes. Steve McQueen wore this Baracuta jacket (scroll down) on the cover of Life Magazine, contributing to its success. See also here.

Travolta Dress

That is a beautiful dress designed by Castelbajac. Fashion, Right of Publicity, and John Travolta, some of my favorite things mixed together, things could not be better.

NB. John Travolta, as dressed in SNF, just like Dustin Hoffman in his Tootsies character, was digitally altered in the Los Angeles Hollywood issues that lead to Dustin Hofman suing the magazine for violation of his right of publicity (and losing). Hoffman v. Capital Cities/ABC, Inc., 255 F.3d 1180 (9th Cir. 2001.) Interesting how the right of publicity may protect one's image as one character(Tootsies, or say, Tony Manero, or as one person, Dustin Hoffman, John Travolta.) The Castelbajac dress pictures John Travolta in his twenties, but not as a particular character though.

Right of Publicity & Flickr

An image of Alison Chang, a Texan teenager, published on Flickr, made it all the way to an Australian Virgin Mobile advertising campaign. The teenager is now suing Virgin in Federal Court.

This case is an IP case, as Mr. Wong, Ms. Chang's church counselor who took the picture, and uploaded it on Flickr, under a Creative Commons license. See here for some Lawrence Lessing comments.

What interests me the most in this case are the privacy issues, in particularly Ms. Chang's right of publicity. Unfortunately, Ms. Chang does not have any right of publicity under Texas law. Texas law, Tex. Property Code Ann. § 26.001 et seq., does not recognize a right of publicity for living individuals, even if, curiously, it prohibits the use of images of deceased individuals, up to 50 years after their death... There is no federal right of publicity. Unlike France, the USA do not have a general droit à l'image, right to your own image. Did the fact that Ms. Chang is living in Texas weigh on Virgin's decision to use her picture for advertising purposes?

Do We All Have a Right to Publicity?

The public considers it important to have a right to know everything about its favorite celebrities. Specialists are making a living following the rich and famous around the globe, capturing pictures from a distance using telescopic photo-lenses, or trespassing a private event, as in the Douglas v. Hello case, EWCA Civ 595 (2004). What distinguishes the celebrities from mere mortals is the fact that their pictures have a commercial value that may pass six-figures, whereas we bore our friends with the slides taken during our last cruise. However, people who are not famous do also have a right to publicity, at least under California law, KNB Enterprises v. Matthews, 78 Cal. App. 4th 362, 367 (2000): “Although the unauthorized appropriation of an obscure plaintiff's name, voice, signature, photograph, or likeness would not inflict as great an economic injury as would be suffered by a celebrity plaintiff, California's appropriation statute is not limited to celebrity plaintiffs.” Just as we may hold many copyrights, it does not make us as wealthy as JK Rowling.

Paris Is Back In Court

Paris Hilton sues Hallmark for Trademark infringement. Copy of the complaint here, via TMZ. Hallmark is selling a card, "Paris First Day as a Waitress", featuring a photograph of the head of Paris Hilton over the drawn body of a waitress. The waitress offers a steaming plate of food to a customer. Paris amicably warns the customer: "Don't touch that, it's hot". "What's hot?" replies the customer, while pointing its finger as the plate. "That's hot" replies the blond heiress (her roots show on the picture though.)

Ms. Hilton is suing Hallmark for commercial appropriation of identity, invasion of privacy, misappropriation of publicity, false representation that Ms. Hilton endorses the product, and infringement of a federally registered trademark.

Ms. Hilton "catchphrase" is "It's hot!", and she registered the phrase as a trademark this year. I checked on TESS, and found three registrations: Ms Hilton has registered "That's hot" in three categories:

1. Alcoholic beverages, namely, wine, champagne and prosecco

2. ELECTRONIC DEVICES, NAMELY, CELLULAR TELEPHONES, CD PLAYERS, CASSETTE PLAYERS, DIGITAL AUDIO FILE PLAYERS, DVD PLAYERS, HEADPHONES, HAND-HELD PERSONAL DIGITAL ASSISTANT/ELECTRONIC ORGANIZERS; HAND-HELD UNIT FOR PLAYING ELECTRONIC GAMES; ELECTRONIC GAMBLING MACHINES, NAMELY, SLOT MACHINES WITH OR WITHOUT VIDEO OUTPUT; VIDEO GAME SOFTWARE; COMPUTER GAME PROGRAMS; VIDEO GAME MACHINES FOR USE WITH TELEVISIONS; COMPUTER GAME EQUIPMENT CONTAINING MEMORY DEVICES, NAMELY DISCS AND CARTRIDGES

3. MEN'S AND WOMEN'S CLOTHING, NAMELY, SHIRTS, SHORTS, JEANS, JACKETS, SKIRTS, SLACKS, BLOUSES, DRESSES, VESTS, COATS, SWEATERS, SCARVES, SWIMSUITS, UNDERWEAR, UNDERPANTS, SLIPS, CAMISOLES, BRAS, NIGHTGOWNS, ROBES, SOCKS, HOSIERY; INFANTS' AND CHILDREN'S CLOTHING, NAMELY T-SHIRTS, SWEATERS, LONG SLEEVED SHIRTS, SHORTS, PANTS, JUMPERS, JUMPSUITS, OVERALLS, ONE-PIECE PLAYSUITS, PAJAMAS, SOCKS, DRESSES, SKIRTS; MEN'S, WOMEN'S, CHILDREN'S AND INFANT'S FOOTWEAR AND HEADWEAR; BELTS.

"That's hot" is a popular trademark, and others registered it under different categories (for instance, a Californian company registered it for the Frozen yogurt; Ice cream; Puddings; Sorbet , and in the Energy drinks categories...

Hallmark's defense is fair use. Is it fair use as in trademark fair use? Fair use in copyright? Is there such a defense as fair use in the right of publicity? I will have to research in order to answer that last question. A commercial appropriation of publicity, right of publicity, action is the more likely to be successful, not because of the use of "It's hot", but because Hallmark use a photograph of Paris Hilton for commercial purpose. The right of publicity is codified in section 3344 of the California Civil Code.

I mentioned last month an article written by Professor Dogan & Professor Lemley. They advocate making the right of publicity a part of trademark law.

If one agrees with them, Hallmark, in order to prove fair use, will have to prove that the public interest in the satire is greater than the public interest in not being confused by the use of a registered trademark. In that case, there is no likelihood of confusion. The card should be protected by the First Amendment, especially since Paris has put herself in the spotlight lately. As a social commentary, a satire is an effective tool to comment on the heiress' antics.

How To Profit From Your Image, Literally...

Do I need a life size image of Derek Jeter? Probably not, and that's too bad.

Impersonation & The Law

Elvis is not the only one to get impersonated. Apparently, even small, relatively unknown band, may have this problem.

Elvis' impersonators and the law, this way, (page 12), an article by David Wall.

Number 42 goes 1125(d)

Via The Legal Satyricon, the cease and desist letter sent by the attorney of Mariano Rivera to the person who registered marianorivera.com. But apparently, he will be able to continue to operate its fan site, for now at least. I noticed that the site features some ads, but The Legal Satyricon made a point mentioning he did not have any and thus avoided the "for profit" pitfall. I wonder if he added them recently?

Via The Trademark Blog, great article by Brian Socolow about the right of publicity of athletes. The image of an athlete is indeed "a valuable commodity."

Right of Publicity for Characters?

Even fictional characters have to manage their image. Nickolodeon announced that it will no longer let its characters promote junk food.

The company move is a safe one, and should prevent receiving such letters in the future.

Even characters need to manage their image. Dora is already suffering from "lead paint association", she could stand to add another strata to her image: lead paint + junk food= bad Dora.

Tabloids.

Michael Madow noted in his seminal article about publicity rights , Private Ownership of Public Image: Popular Culture and Publicity Rights, 81 Cal. L. Rev. 125 (1993), that “the tabloids are free to profit by keeping the world abreast of Bette Midler’s struggles to control her weight, but an automobile maker may not make unauthorized use of a Midler “sound-alike” in a television commercial”.

Others authors have also noted that the celebrity is not alone creating her famous persona: her agents, the studios, and even the fans’ enduring admiration all concur at creating commercial value , Stacey L. Dogan & Mark A. Lemley, What the Right of Publicity Can Learn from Trademark Law, 58 Stan. L. Rev. 1161, 1181 (2006). If I buy US at my local magazine stand, I not only enrich its editor, but also Britney, Jen , and Brad. I contribute to the building of the stars' image, in a positive or in a negative way.

Tabloids can damage the celebrity’s reputation, her image, and thus lower the commercial value of her publicity rights. When images of Kate Moss snorting cocaine circulated, Ms. Moss lost some modeling contracts. However, she quickly gained new ones, signed with brands eager to be associated with her drug-chic image.