Posts Tagged: "Right of Publicity"

Third Circuit: Facebook Not Immune to Right of Publicity Claims Under IP Carve-Out of Section 230

On September 23, the U.S. Court of Appeals for the Third Circuit reversed in part a decision by the U.S. District Court for the Eastern District of Pennsylvania, ultimately holding that Karen Hepp’s complaint against Facebook was not barred by Section 230 of the Communications Decency Act of 1996.In 2018, Hepp was informed by a coworker that a photo of her was being used online. The photo of Hepp was taken without her knowledge or consent and she never authorized the use of the image in any advertisements.

Hepp’s complaint cited two sets of posts online of the photo, which Hepp alleged under Pennsylvania law violated her right to publicity. The first post appeared on Facebook as an advertisement to a dating app. The advertisement encouraged Facebook users to use the app and used the image of Hepp to promote the dating service. The second post appeared on Reddit, where a user linked to a post on Imgur. The Reddit post was upvoted hundreds of times and incited indecent user commentary regarding the photo of Hepp.

Updates to Olympic Charter Rule 40: Impact of Name, Image, Likeness Changes for Tokyo Games

“Name, Image, Likeness” rights, the term commonly used to designate rights covered under right of publicity law, has been a popular and trending term thus far in 2021, and a hotly debated topic in the world of sports. With the Supreme Court’s ruling in NCAA v. Alston, multiple states enacting Name, Image, Likeness statutes, and the recent decision by the NCAA to suspend all Name, Image, Likeness rules for incoming and current athletes, this year is promising to reshape the advertising and sponsorship landscape for current U.S. college athletes and recruits. However, the controversies surrounding this subsection of intellectual property (IP) Law are not new to sports, and they are not unique to college athletes. For years, Olympic athletes have fought against Name, Image, Likeness restrictions set forth in the Olympic Charter and imposed by the International Olympic Committee (IOC).

Lessons from Ice Cube’s Lawsuit Against Stock Trading App in Right of Publicity/Trademark Infringement Case

The multi-talented Ice Cube famously said “It was a good day” in his hit song of the same name. But the hip-hop icon and his team probably weren’t having a good day when they saw a digital ad featuring an image of Ice Cube and an altered version one of his most famous lyrics—that he claims was posted without his knowledge or consent. On March 31, 2021, Ice Cube (also known as O’Shea Jackson, Sr.) filed a lawsuit against Robinhood Financial LLC, and Robinhood Markets, Inc.,  financial services providers, alleging Lanham Act violations as well as violations of  California law, including misappropriation of likeness and unfair competition. He is just the latest celebrity to seek to protect his/her rights of publicity (giving a person commercial control of their name, image and likeness) through legal action. Based on outcomes of well-known cases filed by basketball legend Michael Jordan, film/TV actress Katherine Heigl, and beauty and style mogul Kim Kardashian West, Ice Cube would appear to be on well-trod legal ground in his court battle with the trading app.

Voices, Copyrighting and Deepfakes

Jay-Z recently tried to have a YouTube video removed for copyright violations. When YouTuber Voice Synthesis used an open-source program, Tacotron 2, to digitally impersonate Jay-Z’s iconic voice saying different things or singing songs, his entertainment agency Roc Nation LLC claimed that the YouTuber “unlawfully uses an AI to impersonate our client’s voice” and infringe on Jay-Z’s copyright. Roc Nation’s assertion of copyright protection via YouTube’s copyright strike system begs the question: with ever-evolving AI, are voices copyrightable? 

Amateurism for Assets: NCAA to Allow Student Athletes to ‘Benefit’ from Personal Intellectual Property

The National Collegiate Athletic Association (NCAA) recently took a step toward letting student athletes “benefit” from use of their name, image, and likeness. The move comes after California Governor Gavin Newsom signed into law a Fair Pay to Play Act allowing collegiate athletes in the Golden State to accept endorsement deals once the law takes effect in January 2023. On Tuesday, October 29, the NCAA’s Board of Governors voted “unanimously to permit students participating in athletics the opportunity to benefit from the use of their name, image, and likeness in a manner consistent with the collegiate model.” The key phrase here is “in a manner consistent with the collegiate model,” which invokes the NCAA’s commitment to the nebulous tenet of “amateurism.” Pragmatically, this vote amounts to two things for student athletes. First, this process will not happen immediately: the Board set a deadline of January 2021 for changing the rules. Second, and most notably, the Board carefully refused to acknowledge or confirm that student athletes would actually be paid. In other words, this vote is merely a shuffle in the direction of college athlete compensation by way of their “right of publicity.”

In Honor of April Fools’ Day: Diving Into Deepfakes

Deepfake technology has made headlines recently for its use in creating fake portrayals of celebrities, but the long term implications could be much more sinister than phony renderings of Scarlett Johansson appearing in porn videos or President Barack Obama calling Trump a profanity. While the California bill is chiefly aimed at criminalizing this particular type of technological deception, it has implications for IP in that it reaches conduct that may not be easily addressed by the enforcement of existing IP law.

Like It or Love It: How Not to Get Pinned (Legally) When Using Social Media to Promote Your Brand

Twitter®, Instagram®, Facebook®, Pinterest® and other social media websites and apps are great avenues for advertising and promotion of one’s business and brand. However, in using social media to promote one’s business, there are a number of pitfalls that one must avoid. Using social media in relation to a business is not the same as using social media for personal, non-commercial use… The issues with using someone else’s copyrights, right of publicity and trademark in social media to promote a business is that the business is arguably profiting off of someone else’s property that does not belong to them. That can and does create a significant amount of conflict. Profiting from another’s property is what separates the use of social media in business from just personal use.

Copyright Preemption in the Smart Phone Society: The Ninth Circuit Clouds the Picture in T3Media

There is no question that smart phones have transformed the social and economic structure of society, and the integration of increasingly effective cameras has helped spark the revolution.  It is now the norm for people to document their lives through images of themselves and those around them, and to share those images through social media, where others then copy, edit, and reuse them within the blink of an eye.  Just imagine all the ways that photos are now taken, posted and virally spread via social media.  For instance, I have taken selfies, asked strangers to take pictures of me with my hiking buddies, and asked friends to send me images of people from their camera rolls. I have taken photographs of well-known personalities at private gatherings, and snapped pictures of individuals when they had no idea I was even there.   Sometimes I decide to post these personal images on Instagram or Facebook, and then away they go… Unfortunately, the Ninth Circuit failed in T3Media to fully and accurately address the limits of copyright preemption on state law claims involving the personal rights of individuals appearing in photographs.

The Risks of Using Images for Commercial Purposes

Businesses were recently given a harsh reminder about the effects of failing to obtain permissions when using photography for commercial purposes when a California woman sued Chipotle earlier this year for $2.2 billion. According to the complaint in the Chipotle case, in 2006, a photographer approached the plaintiff outside of a Chipotle restaurant and asked her to sign a consent form about some photographs taken inside the restaurant. The woman refused, but in 2014 and 2015, she found a photograph of herself edited into promotional materials placed on the walls of several Chipotle restaurants in California and Florida. This case serves as a reminder that any business that uses a person’s image for commercial purposes must first obtain that person’s consent.

Estate of Marilyn Monroe sues intimate apparel company for trademark infringement

On August 8, 2016, plaintiff became aware of defendant’s unauthorized use of the Marilyn Monroe marks and likeness and sent a cease and desist letter. Defendant continued with their allegedly unauthorized activities, leading to the filing of the complaint that starts this legal dispute. It is worth noting, however, that the defendant did not use the name Marilyn Monroe in any of its marketing, packaging, or other branding. Any association to Marilyn Monroe is based solely on defendant’s use of her visual likeness.

How do Estates Monetize Images and Intellectual Property of Dead Celebrities?

With the deaths of Prince and David Bowie earlier in the year, the process by which celebrity estates monetize the images and other intellectual property (IP) of the dearly departed has come into greater focus. How will they handle the onslaught of business from rights to their images and other non-musical IP? Unlike recordings and music publishing, which are covered by national law, individual states determine rights of publicity. Specifically, copyrights are federal and can be inherited by heirs such as in the Marvin Gaye case.

Comic-Con Considerations: Cosplay, the Right of Publicity, and Copyright Concerns

For as much as Comic-Con is about comics, TV, and upcoming movies, it’s not hard to see that a large portion of its allure for fans is cosplay. Cosplay consists of fans who create and wear costumes and outfits based on their favorite characters in media, spanning all forms of entertainment but most notably, video games, comics, movies, and TV shows. Even though cosplay is about the characters, there are still normal people behind the armor (for a given value of normal), and these people all have their own right of publicity.

The Right of Publicity: Cashing in on Being Famous

In part 2 of my interview with Kristina Dinerman we discuss how aggressive celebrities are becoming with respect to protecting their right of publicity in the age of social media, whether the Supreme Court may interject itself at some point and decide whether tweeting constitutes commercial speech, and the growing phenomenon of people becoming celebrities as the result of being famous for, well… being famous.

The Right of Publicity in a Social Media World: An Interview with Yahoo! Executive Kristina Dinerman

Kristina Dinerman is Vice President and Associate General Counsel for Yahoo! Inc. Dinerman handles business and legal affairs for media, marketing and the Yahoo Studio, which means that dealing with the many thorny issues associated with rights of publicity are on her daily radar. In this interview we discuss how the Internet generally, and social media more specifically, has changed the landscape with respect to rights of publicity, raising a number of interesting questions about what is, and what is not, commercial speech.

What is Intellectual Property?

Generally speaking, “intellectual property” is probably best thought of (at least form a conceptual standpoint) as creations of the mind that are given the legal rights often associated with real or personal property. The rights that are obtained by the creator are a function of statutory law (i.e., law created by the legislature). These statutes may be federal or state laws, or in some instance both federal and state law govern various aspect of a single type of intellectual property. The term intellectual property itself is now commonly used to refer to the bundle of rights conferred by each of the following fields of law: (1) patent law; (2) copyright law; (3) trade secret law; (4) the right of publicity; and (5) trademark and unfair competition law.