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Transform my Hart: Publicity Rights in Expressive Material
June 4, 2013 by Rick Sanders | Category: Blawg, Blog | Tags: First Amendment, free speech, right of publicity, Rogers test, trademark, transformative use, video games
Divided Third Circuit Reverses in EA v. Hart
Way back in September 2011, I blogged about Hart v. EA, mostly as an introduction to publicity rights. Hart was a former NCAA quarterback (and former teammate of Ray Rice at Rutgers) whose image (like many other former NCAA players’) is used in EA’s NCAA Football. The NCAA (whose reputation has not gotten any better since then) licenses collegiate athletes’ images and physical statistics to EA, but at the same time forbids collegiate athletes from profiting from their own images.* When you play NCAA Football, you can actually play a simulacrum of Hart—his image and certain physical and football statistics. If you’re a Rutgers alumnus, you might be pretty excited to play Rutgers’ powerful 2006 team (with Hart as quarterback and Rice as tailback) and relive the high-water-mark of Rutgers football.
* I’ll make no secret of my disgust at this state of affairs. Universities are able to profit mightily from young men to risk their health and long-term prospects to play a game they love. A university education is a very valuable thing, and most student-athletes get a great deal, but it’s on the backs of the … Read More»
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In Dark Knight Rises Trademark Case, Judge Works from Clean Slate
Fake Website Selling Fake Software Doesn’t Infringe Real Trademark
I’m taking a short break from the posts about my all-important, earth-shattering article because this legal opinion is too awesome not to. Read it here (Fortres Grand v. Warner Bros.). It involves: Dark Knight Rises, “Catwoman*,” fake software, real software, viral marketing, and the First Amendment. So, yeah, I kind of have to blog about it. Now.
* Before you ask: Eartha Kitt.
In The Dark Knight Rises, an important plot point is some fictional software called “Clean Slate” that can completely remove your criminal history from every database in the world—except in places that still keep paper files, I guess. Actually, “fictional” doesn’t do it justice. Perhaps “fantastic” or “outlandish” or “magical” are better.
Don’t you hate it when your slates are not clean? Try Clean Slate brand slate cleaner.
Not terribly coincidentally, CLEAN SLATE is also the name of a software product published by the plaintiff. This product erases all record of your doings on a computer so that subsequent users can’t tell what you’ve been up to on the computer. The idea is that each user starts with a “clean slate.” The reason … Read More»
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Space Amazons, Space Marines and the Non-Existant Trademark Takedown Notification
Caught Between the Heartless and the Cowardly, Does an Indie Author Stand a Chance?
Update (Feb. 8, 2013): It appears that Spots the Space Marine is available once again from Amazon’s Kindle store, as of this morning. I don’t have any details about the change, e.g., whether it’s permanent, who relented (Amazon or Games Workshop), or why. (Since this post didn’t go up until last night, we can feel confident that this post had nothing to do with it!)
Further Update (Feb. 14, 2013): It appears Amazon voluntarily put the back up. Apparently, the EFF asked Amazon to, Amazon took an actual look at the notice, gagged, reached the same conclusion outlined below, and put the book back up. The EFF’s report paints Amazon as somehow so overwhelmed with notifications that they can’t spot (as it were) an obvious stinker like this. But taking something down like this isn’t being “neutral.” It’s being a tool (in the old sense of the word). EFF is correct, however, to identify providers like Amazon as the “weak link” in the chain of free speech.
Further Update Cont’d: For its part, Games Workshop claimed that it “had no choice” but to cause … Read More»
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I Has Moar Flava: Nine Copyright Observations About the myVidster Case
Heh, He Said “Dicta”
Last time, I tried to explain the main holdings from the important but maddening Flava Works v. Gunther (a/k/a myVidster) opinion by Judge Posner. Because so much of the decision is dicta (material that is unnecessary to the holding), and fascinating and bizarre dicta at that—basically, it’s Judge Posner arguing with himself—there’s a lot to react to.
So here they are: nine observations about the dicta in Judge Posner’s Opinion, in no particular order:
Are Wieners Copyrightable?
1. Judge Posner can’t help but spend an unnecessary but interesting paragraph (again, complete dicta) on whether pornography is copyrightable.* He seems to think it is, and the current legal authority (somewhat old and creaky) backs him up. Under First-Amendment principles, what constitutes pornography (“obscenity,” really) is a combination of national principles (whether it lacks some sort of artistic merit) and local values (the jury going, “Ewwwww!”). Copyright is a national system, so it shouldn’t change from locale to locale. If the local populace is truly disgusted by it, it can use other laws to discourage it, just leave copyright out of it.
* Judges who are stuck adjudicating mass-defendant BitTorrent cases involving pornography (as most of them … Read More»
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Come on Get Happy! Publicity Rights in the Online Context
But it’s Sad, Sad News for Momma Partridge
Even when I was a little kid, I didn’t like the Partridge Family. It came on late in the afternoon (in syndication, of course), after some Looney Tunes-type cartoons. It always seemed to start promisingly, with a little cartoon—featuring cute partridges hatching—and catchy song* for the opening credits. Then it went immediately downhill after that, mostly because it wasn’t a cartoon. Also, I was envious that the littlest kids got to live such a cool life that didn’t involve going to school. And I positively hated Danny.** Honestly, I preferred the Brady Bunch, if I had to endure a live-action sit-com, which is settling a low, low bar.
* Whoa, I just listened to the song again. I should rephrase that. It was catchy for a six-year-old kid in 1974, I guess.
** Yeah, I get that Susan Dey was pretty. But c’mon I was six. Also, at that point in her acting career (she was previously a model), she really couldn’t act.
I bring this all up because the actress who played Momma Partridge, Shirley Jones, recently lost an appeal on a claim that her likeness was … Read More»
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In re BitTorrent Adult Film: Entertaining AND Educational!
Dissecting a Remarkable Ruling
* The blog title is a reference to this Order of the Stick comic. (It’s safe for work, so long as you don’t read it out loud.)
Last time we surveyed the forces that lead to this recent extraordinary magistrate’s opinion. It was handed down May 1, but already it’s become notorious for its almost gleeful taking down of the four porn-industry rights-holding plaintiffs. The key is to read the snerk-inducing footnotes. Highlights include these gems:
Footnote 7, in which the concept of “moral high ground” is discussed:
Plaintiff K-Beech’s rambling motion papers often lapse into the farcical. In its papers, counsel for K-Beech equate its difficulties with alleged piracy of its adult films with those faced by the producers of the Harry Potter books, Beatles songs and Microsoft software, and compare its efforts to collect from alleged infringers of its rights to the efforts of the FBI to combat child pornography. In an ironic turn, the purveyors of such works as Gang Bang Virgins, explain how its efforts in this matter will help empower parents to prevent minors from watching “movies that are not age appropriate” by ensuring that viewers must
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Rick to Present at The Internet & the Law 2011
Rick will be presenting at The Internet & the Law 2011, which takes place all day Friday, December 30, at the Nashville School of Law. The tuition is $280, and it’s good for 5 hours of General CLE credit, plus 1 hour of Dual CLE credit. Rick will be presenting on two topics: (1) “Internet 101″: Defining the Internet and its Legal Environment; and (2) Constitutional Issues Arising out of the Internet. Rick hopes to see you there!
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The Art of Ruling on the Free-Speech Right to Speak Online Anonymously
A Judge May Have Found a Better Way
Courts have been struggling for several years now with how treat online anonymous speech when faced with requests to unmask the identities of the anonymous speakers. I outlined the issues previously in these two blog posts, but the problem amounts to:
- Balancing the right to speak anonymously (an aspect of the First-Amendment right of free speech) against the right to seek and obtain redress against wrongdoers.
- The sneaking suspicion that anonymous speaker is just trying to duck answering for their wrongdoing.
- The sneaking suspicion that the supposedly aggrieved party is really just trying to unmask and embarrass the anonymous speaker.
It’s not just that courts have come up with a bewildering variety of tests to balance the competing rights, it’s the breadth of attitudes that courts have displayed on this issue. Some courts really privilege the right to speak anonymously. Others don’t seem to give a toss.
Another problem is that these tests are supposed to be straightforward and easy to apply–“bright-line” rules–but in practice, they usually don’t survive their application to the next set of facts. Thus, although they’re meant to be applied broadly, they tend to be limited to … Read More»
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Hart v. EA: Are Publicity Rights in the Game?
Free Speech Sacks Publicity Rights (but Was it Offside?)
Update: The Third Circuit recently reversed this decision. I blog about that opinion here.
A few weekends ago I blogged about publicity rights in connection with a Vampire Weekend album cover. One of my main points was that publicity rights are a lot like copyright, except that it’s a right held by the subject of a work, rather than by the work’s author. Thus, when a work has a living (or in some states, dead) person as its subject, there can be two rights to worry about: copyright and publicity. Publicity is the right to control representations of yourself; copyright is the right to control representations (OK, “expressions”) you make.
Team Publicity Rights vs. Team Free Speech
Publicity rights make intuitive sense. If you’re a celebrity, even a local or minor one, people shouldn’t be able to use your likeness to make a buck. That’s a market for you to control. To this, we add a kind privacy or dignity sheen that arises (in my opinion) from the general feeling of discomfort we get when our likeness is shown to people outside our normal circle of family and acquaintances. Intuitively, … Read More»
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Have Yourself a Vampire Weekend!
Publicity Rights, Indemnification and the Coolest Album Cover in Recent Memory
In this post-album world, where we usually buy our music song by song, the album cover is something of a lost art. In 2009, Vampire Weekend infused some life into that art by building an entire semi-viral marketing campaign around a terrific image that turned out to be the cover art for their next album, Contra. That album cover was the subject of an interesting lawsuit filed last year in Los Angeles, which settled earlier this week.
Contra’s album cover is one of the best in recent memory. If you’re a fan of Vampire Weekend, you know what I’m talking about.* If you don’t, you can get a good look at it here at Rolling Stone’s site. It’s hard to put one’s finger on why it’s so good. It looks like a candid poloroid (and, perhaps, it is). The subject is pretty but gawky. Her eyes are wide, less with surprise than with a kind of intensity, her mouth slightly open as if she were about to say something. The lighting implies that it was taken, with a flash, in a darkened room. It’s … Read More»
