Posts In "First Amendment"

First Amendment




Q&A: What Copyright Rules Apply if I Record a Live Show for My Film?

Q: I’m a documentarian. If I were to record a live show as part of a documentary — audio and visual — am I free to use it even if there’s live music being played in the background?

A: Look, I’m no math magician, but one of the things I always liked about math is that it’s a world of definitive answers. In my simplistic view, the world to a mathematician is one big black and white cookie. It may be a complicated black and white cookie, but it’s black and white nonetheless.

I, for some reason, chose to be a lawyer. In the world of law, nothing is black and white. It’s all grey. And if we’ve learned anything from grey gooMay Grey, people who spell grey “gray,” and Grey’s Anatomy, it’s that grey sucks.

Unfortunately for us lawyers, most people assume that the law is black and white… that there are simple yes and no answers to legal questions. But there rarely are. Lawyers are paid big bucks to always find a counterpoint to every point raised by their opponent — and counterpoints usually exist. To make matters worse, sometimes legality and reality diverge. Even if you find yourself on the right side of one of those rare black and white legal situations, it may not matter unless you’re willing to pay a lawyer to enforce your rights, or defend you, in court. Proving you’re right, even when it’s painfully obvious that the law is on your side, can be an expensive endeavor, especially if the party on the other side has money and a bad attitude. Continue reading the full story . . . »

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Leggo My Likeness Part Trois: Pau Gasol’s Celebrity Doppelganger

Ever wonder what it’s like to be so famous that people who look like you can make money just by acting like you? We’ve all heard of stunt doubles. And most of us have seen the movie Dave. But not everyone is familiar with the phenomena of professional celebrity impersonation and the fun legal issues associated with it.

In this edition of Leggo My Likeness, we’ll take a look at 6’8” Michael Fanter of Antelope Valley, CA, who reportedly charges up to $600 per hour as a Pau Gasol impersonator. (For the record, the real Gasol — power forward for the Los Angeles Lakers, just in case you actually need that information — is listed at an even 7’, so I’d look for a $100-per-missing-inch discount.)

The Double Take

One of the two pictures below is Pau Gasol. Can you guess who it is?

(Read to the bottom of the post to find the answer, after some deeply insightful legal analysis about Fanter’s work — do not scroll without reading!) Continue reading the full story . . . »


How “Free” is “Free Speech?” You’re Still Fired (And/Or a Jerk)

Last year, after Big Love star Chloe Sevigny trash-talked her show’s season, calling it “awful,” we took our dear readers through the ins and outs of non-disparagement clauses in celebrity contracts, and how they can (or can’t) prevent stars from criticizing a show or movie while simultaneously making bank on it. (Along the same lines, stay tuned for our much anticipated analysis of the dispute between Charlie Sheen, CBS/Warner Bros., and showrunner Chuck Lorre. Sneak preview: we will not be able to restrain the urge to make extremely obvious and ubiquitous “tiger blood” and “Adonis DNA” references.)

But what happens when a star makes comments that are not disparaging to the star’s current project or boss, and instead are just generally perceived by certain people (or everybody) as offensive or insensitive? Surely the First Amendment must protect this kind of speech!

Not so fast, Dr. Laura. Because as we like to say around these parts, the right to free speech is not the right to consequence-free speech. Continue reading the full story . . . »


Who Should Be More Upset, the Alien or the Predator?

While buying a present for my son recently at a local surf-and-skate shop, I decided to check out the current crop of skateboard decks. For those not into skating (or who don’t have kids into skating), the underside of boards — you know, the part that no one will ever see if you are actually riding the board successfully — have striking graphics that are a big part of why you choose, and how much you pay for, a particular board. (Well that makes perfect sense — you’re welcome, fellow confused parents.)

One deck immediately stood out: a drawing of E.T. and Michael Jackson in an embrace, below the caption “Alien vs. Predator.”

The board is pretty hilarious, but also risky. Because I am a lawyer, and because lawyers must check their unfettered-by-legal-obsession senses of humor at the law school gate, I couldn’t help thinking about numerous potential legal claims that several plaintiffs might be able to bring. 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 . . . »


Step-By-Step…Through the Legal (Non-)Consequences of Publicly Outing a Celebrity

Supermarket tabloids compete with each other in a lot of ways. Who can attract the most readers/eyeballs? Who can come up with the most misleading headline? Who can stretch the definition of “news” to the most absurd degree? But one of the strangest and most downright disturbing areas of competition among tabloids has to be, who can be first to out a celebrity?

In many instances, well-known entertainers have been driven into public revelations about deeply private aspects of their lives after relentless speculation and intrusion from aggressive tabloids and their dubious “sources.” In 2006, ‘N Sync alum Lance Bass finally came out of the closet after years spent hiding his sexuality to appease his female fans and strategic handlers (and the world was duly shocked). Clay Aiken, who rose to fame after placing second on that little show called American Idol, waited until becoming a father to publicly disclose his sexual orientation in 2008. And last year, Latin heartthrob Ricky Martin ended years of public scrutiny and speculation by announcing to the world that he is “a fortunate homosexual man,” forcing an immediate public reevaluation of the lyrics to such modern classics as “Shake Your Bon-Bon” and “She Bangs.”

Lance, Ricky, and Clay decided to come out on their own terms (notwithstanding the slight nudge [read: “very, very forceful shove”] from the Hollywood gossipmongers). But as Law Law Land superfan/mother to our very own Rachel Wilkes recently asked us, what would happen if someone in the know publicly outed a celebrity before that celebrity was ready to do so themselves? Could the furor over that celebrity’s sexual preferences move from the gossip rags to the courthouse docket? Let’s take a look at a recent example. Continue reading the full story . . . »