Posts by Aaron Moss

Law Law Land was co-founded by Aaron Moss, whose repeated attempts to cash out his shares in the fledgling enterprise and retire to Costa Rica have so far proven unsuccessful. As a result, he continues to contribute to and supervise the blog, which generally consists of reminding Ken to be funny but not in a way that gets the firm sued. In his spare time, Aaron serves as the Chair of Greenberg Glusker’s Litigation Group, where he handles a variety of entertainment litigation matters, often involving copyrights, trademarks and other intellectual property.



To Be Judged Not By the Color of Their Skin, But By the Content of Their Legal Briefs

[Ed. Note:  In honor of Martin Luther King, Jr. Day, we'd like to re-run one of our favorite seasonal blog posts, thereby honoring Dr. King's legacy not only as a visionary and civil rights leader, but also as a copyright litigant.  Don't judge us; we're lawyers, we can't help ourselves.]

“I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character.”

These words will be heard many times this week as we celebrate the birthday of Rev. Dr. Martin Luther King, Jr. They are, of course, from King’s famous 1963 “I Have a Dream” speech. But as you celebrate his life and listen to his words, ask yourself this question: have you ever heard the whole speech? Not just the key excerpts that will be repeatedly broadcast on the news, but the entire, seventeen-minute address as it was given to a crowd of 200,000 in front of the Lincoln Memorial?

Ever wonder why it’s not shown on TV more often?

The answer, my friends, is copyright. Because while Dr. King may have dreamed of a world without racism, even he wouldn’t dare to dream of a world without lawsuits.

Yes, in addition to being a noted clergyman and civil rights leader, Dr. King was a copyright litigant. Continue reading the full story . . . »



Why Celebrities Who Don’t Want to Live in California Might Still Want to Die There

The right of publicity — the legal doctrine that protects the right of celebrities to control and profit from their names, likenesses, and other aspects of their identities — is a familiar topic here at Law Law Land.  But it can be a more complicated subject than we sometimes give it credit for.  Unlike copyright and trademark law, which are (mostly) defined by federal statutes that provide for consistent nationwide rules, the right of publicity is exclusively a creature of state law.  And, thanks to the patchwork of inconsistent and often confusing state laws that have evolved over the years (with heavy influence and lobbying from the heirs of particularly valuable/merchandisable celebrities, like Elvis Presley and Albert Einstein), its application to the dearly departed can get pretty quirky.  For example:

Are you a celebrity who died as a California resident?  Great — your heirs can exclusively exploit your name and likeness for another 70 years!  Oh, were you actually a New York resident when you died?  Just kidding, then, your heirs are totally out of luck, and unauthorized t-shirts with your face will be hitting stores shortly.  That is, unless, your heirs sue in Washington or Indiana, which purport to apply their right of publicity laws to any individual, regardless of whether the celebrity’s state of domicile recognizes the right.  Unless, of course, the federal courts decide that those laws are unconstitutional (a conclusion reached by a Washington district court in a 2011 case involving Jimi Hendrix; the Ninth Circuit will be making its own ruling soon).  And even among those states that expressly recognize a post-mortem right of publicity, there is broad disagreement about the length of protection afforded, the retroactivity of the statutes, and a whole host of other issues.  Got it?  Don’t worry, nobody else does either.

Just ask the lawyers for the estate of Marilyn Monroe, whose recent unsuccessful right of publicity lawsuit could be “Exhibit A” in renewed effort to enact a federal right of publicity law. Continue reading the full story . . . »



The Best Laid Plans of Best Buy Go Awry

Does any one electronics retailer have a monopoly on incompetent employees wearing blue shirts? That’s just one of the questions raised by a cease and desist letter sent by retail giant Best Buy to internet merchant Newegg.com, which Newegg posted on its Facebook page last week.

In its letter, Best Buy takes Newegg to task for, among other things, a TV commercial in which (in Best Buy’s words) a “fake Best Buy employee is depicted as being slovenly and uninformed about computer products, in contrast to [Newegg’s] employees who are portrayed as ‘experts.’” The letter goes on to state that Newegg’s “misuse of valuable trademarks and . . . negative portrayal of our employees violates our trademark rights and misleads consumers about our services in violation of federal and state law.”

Check out the commercial in question, after the jump. Continue reading the full story . . . »



Copyright Battles on “Friday” Are Not Fun, Fun, Fun, Fun

It’s Friday, Friday
Gotta get down on Friday
Everybody’s lookin’ forward to the weekend, weekend

Yesterday was Thursday, Thursday
Today i-is Friday, Friday (Partyin’)
We-we-we so excited
We so excited
We gonna have a ball today

Some people think that Rebecca Black’s “Friday” may just be the worst song in recorded history (a campaign no doubt spearheaded by Right Said Fred and the Baha Men). It also has the tendency to burrow in one’s ear like those little worms from Star Trek II: The Wrath of Khan, which means that once you hear it, you’re only going to be able to get it out of your head by replacing it with a few choruses of MMMBop. And so, in the age of Google, YouTube and Twitter, this horrible yet horribly catchy song and its accompanying music video — both of which probably should have been confined to Black’s family and a close circle of forgiving friends — have now been seen and heard by over 80 million people.

But wait, there’s more: “Friday” now appears to be at the center of a legal showdown over who owns the copyright. Some of you may be thinking: who would admit to liking this song, let alone owning it? But, as they say, 50 million Elvis fans can’t be wrong. And when you have a song that people are paying for just so they can talk about how bad it is, well, my friends, now you’ve got something worth fighting over. Continue reading the full story . . . »



If You Want to Know Why Your Favorite TV Show Isn’t on DVD, Blame It on the Music

One of the joys of living in the DVD/Blu-ray age is that TV fans can easily relive their most joyous television experiences, with series that range from the iconic to the obscure. Megahits like The Simpsons andSeinfeld are obviously readily available, as are cult favorites likeFreaks and Geeks and Arrested Development. Even less iconic one-season-wonders are available for home viewing consumption, like Greg the BunnyStudio 60 on the Sunset Strip, and my personal favorite,Square Pegs, complete with New Wave soundtrack and a pre-Sex and the City Sarah Jessica Parker as nerdy high schooler Patty Greene.

But given the hundreds of shows to choose from, do you ever wonder why some of the most popular series, like The Wonder Years are AWOL on home video?

As with most questions I’m asked (and this can be problematic when my wife wants to know where I’d like to go to dinner), the answer is copyright law. Continue reading the full story . . . »



When It Comes to the Right of Publicity, Yes, Doubt

In 2006, the California Court of Appeal in Kirby v. Sega held that a video game’s depiction of pop singer Deee-Lite in a fanciful outer space setting is a “transformative use” protected by the First Amendment. On Wednesday of this week, the California Court of Appeal in No Doubt v. Activision held that a video game’s depiction of pop singer Gwen Stefani in a fanciful outer space setting singing songs she would never perform is not transformative, and therefore not protected by the First Amendment. And if the seeming inconsistency between those two rulings confuses the heck out of you, welcome to the club.

The tension between the right of publicity and the First Amendment is thicker than the“extenders” and “non-meat substances” in Taco Bell’s “seasoned beef.” I know this firsthand. A dozen years ago, my colleagues and I represented Dustin Hoffman in a lawsuit against Los Angeles Magazine, which took a picture of Hoffman as he appeared in Tootsie, superimposed his head on the body of a male model wearing the latest dress and high heels, and used him as an involuntary model in one of its fashion issues. We won the case at trial, and Hoffman was awarded $3 million dollars in damages (including $1.5 million in punitive damages). Unfortunately for us and our client, the Ninth Circuit later reversed, finding that the magazine’s conduct was protected by the First Amendment.

In the intervening years, the state of right of publicity law has only become more confusing, primarily as a result of California’s I-know-it-when-I-see-it concept of “transformative use.” This doctrine is meant to balance a publisher’s First Amendment interests against a celebrity’s interest in preventing the unauthorized use of his name and likeness for commercial purposes. An admirable enough goal, right? And the California Supreme Court purports to have reduced that goal to a fairly straightforward-sounding “test”: “when artistic expression takes the form of a literal depiction or imitation of a celebrity for commercial gain” without adding additional significant expression, the use is not “transformative” and is an infringement; but if the celebrity image is merely one of the “raw materials from which an original work is synthesized,” the work is transformative and is protected by the First Amendment.

I practice in this area of law, and I like to think of myself as reasonably bright, but I have yet to fully understand this so-called “test.” And judging by the way the cases have come down on this issue, courts are just as perplexed as I am: Continue reading the full story . . . »



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