right of publicity
TRANSCRIPT
What are Rights of Publicity?
In what do you have a publicity right? Name, voice, signature, photograph, image, likeness, distinctive appearance, gestures, and mannerisms. Ind. Code § 32-36-1-6.
Congratulations as commercial use?
Jordan v. Jewel Food Stores, Inc. (7th Circuit, Illinois state law)
• November 2015 settlement after August $8.9 million jury verdict.s?
• Attempts at generating goodwill for your brand can count as “commercial use.”
Lawsuits - Advertising
Are tweets ads?
Heigl v. Duane Reade, Inc.(New York state law)
• Costly settlements.
• Publicity rights possibly conflicting with First Amendment rights.
• Be wary of blurring the lines between social media and advertising.
Lawsuits - Advertising
Lawsuits – Athletes
Maloney v. T3 Media (C.D. Calif.)
Wrestler Steve “Wild Thing” Ray’s suit against ESPN(8th Cir.)
Lawsuits – College Athletes • Student-athlete cases, going back to 2009: 3d Circuit: Hart v. EA 9th Circuit: Keller v. EA and O’Bannon v. NCAA
• Keller and O’Bannon were consolidated into In re NCAA Student-Athlete Name & Likeness Litigation
Ed O’Bannon in 1995 and in EA Sports’ NCAA Basketball
Lawsuits – College Athletes Right of publicity for realistic representations in
videogames
Hart (3d Cir.), Keller (9th Cir.)
Both held: “Realistic” depictions of the athletes in videogames don’t count as transformative use; video game makers don’t have First Amendment protection.
The dissent in Keller:The logical consequence of the majority view is that all realistic depictions of actual persons, no matter how incidental, are protected by a state law right of publicity regardless of the creative context. This logic jeopardizes the creative use of historic figures in motion pictures, books, and sound recordings. Absent the use of actual footage, the motion picture Forrest Gump might as well be just a box of chocolates. Without its historical characters, Midnight in Paris would be reduced to a pedestrian domestic squabble.
Lawsuits – College Athletes
Antitrust: Restraining licensing of name and likeness
O’Bannon v. NCAA (N.D. Calif. 2014).
Held: It’s an antitrust violation to restrain amateur athletes from licensing their names and likenesses in telecasts and video games. (Did not specifically address right of publicity claims.)
Status: Ninth Circuit affirmed that rules violate antitrust law, though the injunction to pay up to $5,000 a year for name, image, and likeness rights was struck. Member school need only provide up to cost of attendance.
Fallout of In re NCAA Student-Athlete Name & Likeness
Litigation
Settlements: • Electronic Arts and Collegiate Licensing - $40 million. • NCAA (use of likenesses in videogames) - $20 million.
Attorneys’ fees: $44 million awarded to attorneys who represented the student-athlete plaintiffs.
Lawsuits – College Athletes
But see Marshall v. ESPN (M.D. Tenn. 2015):
Participants in sporting events don't have publicity rights under Tennessee’s statute.
Archival footage used for NFL Films
Dryer v. NFL (D. Minn. 2014)
NFL wins:• First Amendment protection: Newsworthiness• Consent by players being filmed• Copyright preempts publicity claims
Related: $42 million Marshall v. NFL class action settlement established “common good” fund and licensing agency for 25,000 retired players (Dryer et al had opted out of this settlement).
Lawsuits – Pro Athletes
Fred Dryer
Retired players in Madden NFL video games
Davis v. Electronic Arts, Inc. (9th Cir. 2015)
Players win:• Misappropriation because “accurate” representations of the players were central to the video games’ experience.• Players depicted in the “historical games” mode played in NFL before the union – so they never agreed to a licensing deal.
But see: Similar suit in 2009 by Jim Brown dismissed by federal judge in California.
Lawsuits – Pro Athletes
Incongruous results
But see Noriega vs. Activision Blizzard (Calif. Super. Ct. 2014)
Ex-dictator Manuel Noriega depicted in Call of Duty: Black Ops II.
Dismissed: “The complex and multi-faceted game is a product of defendants’ own expression, with de minimis use of Noriega’s likeness.”
Compare: Dryer and Davis, student-athletes
• The necessity of “accurate depictions” to the product protected NFL Films but doomed EA Sports.
• “The inevitable effect of these rulings is to suggest that producers of creative media who depict people more 'literally' and accurately are more likely to be penalized, while those who 'creatively' change or fictionalize their subjects’ lives, personas or historical context will be on safer ground.”
- Amicus brief filed in Davis by Washington Post, Los Angeles Times, NPR
Naming nonprofits
Barry v. Dickens(D.C. Super. Ct.)
• Widow of deceased former D.C. mayor Marion Barry is suing Kim Dickens, who donated kidney to Marion in 2009.
• Dickens started the “Marion Barry-Kim Dickens Kidney Foundation.”
Other Lawsuits
Trademark Trial and Appeal Board refuses registration for “Princess Kate” cosmetics
• Board said “name and likeness” has broad scope:
“A term may be considered the identity of a person even if his or her name or likeness is not used.”
• Doesn’t matter that her title is technically “Catherine, Duchess of Cambridge,” and not “Princess.”
Trademark registrations
Statutes creating a descendible postmortem right of publicity (such as in
Indiana) have met some skepticism from courts in other jurisdictions.
Postmortem rights of publicity
Experience Hendrix LLC v. HendrixLicensing.com LTD (9th Cir. 2014) (regarding similar Washington state right of publicity law):
“Washington's approach to post-mortem personality rights raises difficult questions regarding whether another state must recognize the broad personality rights that Washington provides.”
• Unpredictable judicial treatment of transformative use defense.
• Lack of conformity among states – especially with posthumous publicity rights.
• Be careful with “creative” advertising, such as social media, native advertising, and advertorials, which blur the lines between First Amendment uses (such as news or literary works) and infringements.
Advising clients: Takeaways
Questions?
Joel E. Tragesser Quarles & Brady LLP
135 N Pennsylvania Street BMO Building Suite 2400
Indianapolis, IN 46204 www.quarles.com
P: (317) 399-2811M: (317) 797-8576F: (317) 957-5011