Tag Archives: Right of Publicity

Personality disorder

Ms. Streisand call your office tweet

When will we ever learn?  The story here is about a lawsuit by lawyer Moira Bernstein, who complains, on behalf of a purported class, that by listing her plain-vanilla attorney name and address and regular old directory information on Avvo.com while festooning her unremarkable data with competing profiles, she’s been wronged.  Actionably.

Streisand EffectJ. Michael Keyes from Dorsey & Whitney, the guy who clocked those clowns in the Southern District of Florida on behalf of Angry Birds and who blogs at TheTMCA.com (and a Friend of Simon), has been watching the Avvo-suing-lawyer business for a while.  “Avvo has been sued at least twice before over its lawyer rating system–and it prevailed both times. In one of those cases the court ordered the plaintiff to pay fees to Avvo,” he points out.

Courts are loathe to silence the rating of professionals and reduce the flow of information to consumers of legal services, Michael notes, and he’s right — not only regarding professionals, of course, as we demonstrated here, for example, in our own unique way — in fact, the claim linked to there, reported as Boarding Sch. Review, LLC v. Delta Career Educ. Corp., 108 U.S.P.Q.2d 1785 (S.D.N.Y. 2013) is almost identical to the one being made by Bernstein in Illinois, although it is not based on the right of publicity; it is still every bit as silly.

“It’s hard to see how a lawyer’s right of publicity–the right to control the commercial use of one’s name, image, or likeness–could trump the right of the public to have access to this information,” Michael says.  Obviously, it can’t, even if Avvo’s ratings are a little goofy.  Hey, it’s a free country! Read More…

Best of 2011: “Life rights”? (Making things with life?)

Originally posted 2011-12-23 01:50:33. Republished by Blog Post Promoter

First posted May 23, 2011.

Pittsburgh Trademark Lawyer Daniel Corbett brings us an NBA star’s attempt at a four-point shot:

Post-relationship drama takes many forms, but federal court litigation under the Lanham Act isn’t typically one of them– unless you’re Miami Heat forward Chris Bosh.  Bosh recently filed suit against the producer of VH1′s “Basketball Wives,” which, as Bosh correctly notes, comprises about as many ex-wives and/or girlfriends as it does “basketball wives” in the term’s purest sense.

At any rate, Bosh is claiming that his ex-girlfriend and the mother of his child is violating his trademark, publicity, and “life rights” by using his name/likeness in connection with the show.  The lawsuit claims that  “[the show] provides these women with a vehicle and worldwide platform” to use the names of players without permission for commercial gain.”

Yes, “using the names . . . without permission for commercial gain” — that’s pretty much dog-bites-man in the IP / right of publicity arena these days.  That’s not blogworthy.

No, you guessed it:  The four-point-shot is the new and exciting proposed tort of “life rights”!  My first inclination, as a child of the ’60’s — no, I mean, really, I was a child then, not that I was born in the ’50’s but kept acting like a child in the ’60’s — was this:

But evidently, no.

Count on Mike Masnick, the source of Daniel’s story, to be all over this nonsense:

Beyond the standard “publicity rights” claims that are so popular these days due to bizarre and dangerous state laws, it seems that Bosh is going even further in claiming that this is also a violation of his “life rights,” claiming that you need a celebrity’s permission to portray them, which isn’t actually true. This seems to be a misreading of California’s publicity rights law.

To be honest, while this case will likely settle one way or the other, it actually seems like it could be a good case for establishing some case law that you don’t need a celebrity’s permission to talk or write about them, and you’re not violating their “publicity rights,” “life rights,” or trademark by appearing in a show based on your connection to them.

As the great Marv Albert would say, “Yuhsssss!”  Except in this case… “No.”

Unless maybe he did mean Lite Bright?

UPDATE:  Good, if somewhat overly credulous, analysis of a related lawsuit — this one by NBA star Gilbert Arenas — by David Fucillo.

LINE SCORE:  Air ball.

Cover me

Originally posted 2014-07-22 13:14:38. Republished by Blog Post Promoter

Photo Attorney Carolyn Wright writes:

Rebecca Tushnet over at the 43Blog reports on a recent case in New York where the court determined that the use of a woman’s photograph for a fiction book cover required a model release.  This ruling creates an anomaly with other NY cases where the court ruled that a photograph of a person used for a news article does not require a release.  The lesson?  It’s always safest to get a model release when using a photograph of a person.

Good pickup.  Good advice, too.  Although, now that I think about it, the facts in this case and the publishing sector in which it occurred sound eerily familiar to me

Best of 2011: “Life rights”? (Making things with life?)

10 Years of LIKELIHOOD OF CONFUSION®

10 Years of LIKELIHOOD OF CONFUSION®

First posted May 23, 2011. Pittsburgh Trademark Lawyer Daniel Corbett brings us an NBA star’s attempt at a four-point shot:

Post-relationship drama takes many forms, but federal court litigation under the Lanham Act isn’t typically one of them– unless you’re Miami Heat forward Chris Bosh.  Bosh recently filed suit against the producer of VH1′s “Basketball Wives,” which, as Bosh correctly notes, comprises about as many ex-wives and/or girlfriends as it does “basketball wives” in the term’s purest sense. At any rate, Bosh is claiming that his ex-girlfriend and the mother of his child is violating his trademark, publicity, and “life rights” by using his name/likeness in connection with the show.  The lawsuit claims that  “[the show] provides these women with a vehicle and worldwide platform” to use the names of players without permission for commercial gain.”

Yes, “using the names . . . without permission for commercial gain” — that’s pretty much dog-bites-man in the IP / right of publicity arena these days.  That’s not blogworthy.

No, you guessed it:  The four-point-shot is the new and exciting proposed tort of “life rights”!  My first inclination, as a child of the ’60’s — no, I mean, really, I was a child then, not that I was born in the ’50’s but kept acting like a child in the ’60’s — was this:

But evidently, no. Read More…

Best of 2011: Dubious assignations

First published on March 8, 2011.

Duets BlogSteve Baird generously linked back to this LIKELIHOOD OF CONFUSION® post writing about the trademark status of some singer’s signature at the superb, now-two-years old Duets Blog.  His novel question:

Do you suppose TS fans have an expectation that the Taylor Swift signature trademark represents her actual, personal signature? If so, would their decision to purchase goods be affected if the signature was actually penned by another? Probably not, but if so, would that subject the trademark registration to cancellation on deceptiveness grounds? Or, on the other hand, do fans assume and expect the trademark signature to be part of the artist’s professional handling, more like they would view assistance from a make-up artist, hair stylist, and/or airbrushing expert?

10 Years of LIKELIHOOD OF CONFUSION®

10 Years of LIKELIHOOD OF CONFUSION®

Well, been there, done that!  Remember this one?  (It’s older than two).  This issue was some guitar player’s signature: Read More…

Icon icon: “I conned”

Hope this is fair use!

Hope this is fair use!

Shepard Fairey, he of the icon con, is about to be the other kind of con — the “vict” kind, as Jim Treacher explains:

By his own admission. If you know anything about the career of this talentless plagiarist, I hope the following news is as satisfying for you as it is for me. NYT:

The street artist Shepard Fairey, whose “Hope” campaign poster of Barack Obama became an enduring symbol of his last presidential campaign, pleaded guilty Friday to a charge stemming from his misconduct in trying to bolster claims in a lawsuit over which photograph had been used as a basis for the poster.

Mr. Fairey, 42, sued The Associated Press in 2009 after it contended he had infringed on the copyright of one of its photographs in creating the poster. Mr. Fairey had claimed in his suit that he had used a different photograph of Mr. Obama, but later admitted that he had been mistaken and had tried to conceal his mistake, by destroying documents and fabricating others…  

Obey the "Hypocrite"'s Lawyers!
Obey the “Hypocrite”‘s Lawyers!

Mr. Fairey, of Los Angeles, pleaded to one count of criminal contempt and could face up to six months in prison. 

Note that this possible jail time isn’t for creating the poster, but for lying to the court in a lawsuit he filed. The Daily Telegraph has more details:

Fairey “went to extreme lengths to obtain an unfair and illegal advantage in his civil litigation, creating fake documents and destroying others in an effort to subvert the civil discovery process,” US Attorney [Preet] Bharara said in a statement…

Says Treacher:  “Fairey’s ego was threatened, and he didn’t think the rules that apply to everybody else should apply to him. So he hit back hard and lied outrageously in the process.”  Sounds like a pretty average day in litigation, only Shepard Fairey’s enemies were high-profile enough for his behavior to get him in big trouble — a condition he brought, quite deservedly, on himself.

(Hat tip to Instapundit.)

Turn the other one? Or liberty? Or death?

“Trademark” is not a verb.

Right — we will resolve these all here and now.  Key issues.  Fish or cut bait.  Or we most assuredly will all hang separately!

The Daily Mail reports, ” Cheeky team applies to use ‘Obama’ as a European trademark“:

A group of enterprising Spaniards is set to win the European trademark rights to a word with instant global recognition – OBAMA.

EU trademark rules once stopped opportunists turning the names of heads of state and other prominent figures and celebrities into branding gold.

But now, unless the use of an instantly identifiable name is deemed to be an act of deception, little else prevents the first-comer grabbing the rights.

Trademark is Not a Verb, Mr. Hart

Trademark is Not a Verb, Mr. Hart

This item stands for two key points which we all must know; nay, knit unto our very hearts.  Permit me some down-the-middle pedantry here.

1.  Trademark is NOT a verb.  Why do I refuse to give up my hopelessly-outnumbered position against the use of the word “trademark” as a verb?  This usage is everywhere, even on the INTA discussion list.  The reason is not only because I am a reactionary.  (Not only.)  It is because the whole point of U.S. trademark doctrine — that trademark rights are, and by the grace of God and Senator Lanham ought to be, earned by use.  First comes secondary meaning, then comes “rights.”

As I have said before, just as you cannot be “bar mitzvahed,” you cannot “trademark” something.  The “Trademarking” is not “done” via the filing of some paper or granting of a registration.  And this fact is obscured by the awful neologism “trademarked,” which suggests you can … well, it suggests you can do exactly what we’re reading this “cheeky team” did in the Daily Mail piece, and which a decent respect to the opinions of mankind requires that we all acknowledge they should not be able to ought to be do.  Ing.

Trademark is Not a Verb

Trademark is Not a Verb, or Give me Death!

2.  Speaking of self-evident truths, we solemnly publish and declare that even it had not become necessary for one people — Amur’ca — to dissolve the political bands which had connected it to another — England, of course — the injury imposed on the American language by the latter by the jarring, ugly and sick-making term “cheeky” as in the Daily Mail headline would make it necessary now.

And if I have to live with “trademarked” to never again see “cheeky,” may the Supreme Judge of the world, in recognition of the rectitude of my intentions, so grant me.

Thus endeth the lesson. Trademark is not a verb.

As to “European trademark” — “sheesh!

Oy vey

Consider the other side of the aggrieved vandalism promoter Shepard Fairey, of HOPE poster fame:

Obey the "Hypocrite"'s Lawyers!

Obey the "Hypocrite"'s Lawyers!

Gawker: “Obey” Trademark Law:

Some guy in Pittsburgh sells little baby Steeler mascots with the phrase “Obey Steeler Baby.” Shepard Fairey demands that he stop infringing on his trademark, which he originally made famous by ripping off the image of Andre the Giant!

Well, if that‘s who he ripped off, then he really does have guts, I guess!

UPDATE:  Fairey’s got even bigger trouble than that.

Overreaching, Part XXVII — Major League Bozos, confirmed

Sometimes we’re not only right, but a judge agrees with us. The AP reports:

Fantasy baseball leagues are allowed to use player names and statistics without licensing agreements because they are not the intellectual property of Major League Baseball, a federal judge ruled Tuesday.

Baseball and its players have no right to prevent the use of names and playing records, U.S. District Court Judge Mary Ann Medler in St. Louis ruled in a 49-page summary judgment.

Major League Baseball claimed that intellectual property laws and so-called “right of publicity” make it illegal for fantasy leagues to make money off the identities and stats of professional players.

But even if the players could claim the right of publicity against commercial ventures by others, Medler wrote, the First Amendment takes precedent because CBC, which runs CDM Fantasy Sports, is disseminating the same statistical information found in newspapers every day.

Here‘s the decision.

Good Job, Steve

As predicted in this space, Wired News reports that the publicity generated by Apple’s ham-fisted exile of a new book about Steve Jobs from its own stores has resulted in such strong demand for the book that the publisher, John Wiley & Sons, has “doubled the print run and moved publication forward a month to May 16.”