Aaron Moss

Contact Aaron

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 . . . »

Megan Rivetti

Contact Megan

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 . . . »

Ricardo Cestero

Contact Ricardo

You’ve probably heard about the recent class action lawsuit filed against Taco Bell, alleging that their tacos don’t really contain beef (or, rather, contain only 33% beef, plus a variety of “extenders” and “non-meat substances” ranging from “autolyzed yeast extract” to silicon dioxide, a.k.a. sand). (Presumably, this will be an easier plaintiff class to recruit than the potential plaintiffs in the YouPorn/“History Sniffing” lawsuit we reported on last month. But maybe I’m overestimating people’s willingness to admit eating Taco Bell.) According to the lawsuit, Taco Bell is misleading the public by saying its products contain “real beef” when, in fact, the products only contain the appetizingly-named “taco meat filling.” Although I find it hard to believe that anyone might have actually decided to go to Taco Bell thinking their taco was going to be 100% beef (it’s fast food, people!), these types of lawsuits are quite common, and the legal foundation of the claim is fairly straightforward.

Boiled down to its essence, Taco Bell is accused of trying to mislead the public about the quality of its product. Legally, Taco Bell’s statements about its meat are considered “commercial speech” — Taco Bell is trying to get people to buy tacos (well…“tacos,” anyway). The First Amendment provides limited protection for commercial speech, and rule #1 is: you have to tell the truth. So, the Food and Drug Administration and the Federal Trade Commission can pass laws restricting what fast food chains can and cannot say about their food. The same is true for other products, like vitamins, weight loss supplements and the like (hence the lawsuits against the makers of Men’s One-A-Day and Airborne, as well as trainer/TV personality Jillian Michaels, endorser of Calorie Control). So the question for Taco Bell is simple: did it comply with applicable regulations when touting its tacos as having “real beef” in them?

Taco Bell’s response, on the other hand, was fascinating. Taco Bell took out full-page “Thank You For Suing Us” ads in major newspapers across the country denying the allegations in the complaint. That’s not too surprising. But, Taco Bell did more than just offer facetious thanks and deny the allegations. Continue reading the full story . . . »

Megan Rivetti

Contact Megan

During a Hollywood breakup, inevitably the bitter dumpee will publicly air some dirty laundry about the heartless dumper. And by now, most of us are probably bored of the endless parade of allegations ofdalliances with the nanny, obsessions with child pornography, andmind-bending racist rants (I mean, those are so overdone, right?). But every once in a while, you get a really interesting, fresh take on the mid-breakup PR takedown. For example, what if the dumpee stronglyinsinuates that the dumper is secretly into cross-dressing? Can that dumper sue the loose-lipped dumpee for defamation? Well, let’s take a look at an example.

The Real Housewives of Beverly Hills is a lovely show that documents the lives of several caring, down-to-earth, and respectful women….oh wait, wrong show. The real Real Housewives of Beverly Hills documents the dramatic lives of six well-to-do women who love their ritzy lifestyles and seem to constantly get into screaming matches with each other about absolutely nothing. (Um. Or so I hear…) One of the show’s stars, Camille Grammer (a.k.a. Kelsey Grammer’s bitter soon-to-be ex-wife), has been the instigator of many of those screaming matches. Yet, evidently not content with stirring things up in only one medium, the erstwhile Mrs. Frasier Crane went for bonus headlines during an appearance last week on theHoward Stern Show.

When Howard Stern asked Camille whether Kelsey starred in the cross-dressing Broadway show La Cage aux Folles because he is gay, Camille quickly replied, “That’s for another reason.” Howard Stern and his sidekick Robin Quivers then pressed Camille about whether Kelsey was secretly into cross-dressing. In response, a laughing Camille not-so-coyly stated, “I didn’t say it. I’m not talking about that.” While Camille did not exactly say that Kelsey likes to play dress up with women’s clothes, she never denied it or indicated that she was joking around. Instead, she strongly implied that cross-dressing was one of Kelsey’s private extracurricular activities. Before going any further, but not before hinting that Kelsey has worn her panties in the past, Camille decided to change the subject for fear she would be “smacked with a lawsuit.”

Kelsey does not seem to be all that rattled by Camille’s antics. But, this being a legal blog and all, what we want to know is: can Kelsey sue his estranged wife for defamation? Continue reading the full story . . . »

Rachel Valadez

Contact Rachel

With weeks of double-page “For your consideration…” ads in Varietyand The Hollywood Reporter finally culminating in yesterday’s Golden Globes nominations announcement — about which I have nothing to say other than “at least 3, if not 4, of the nominees for Best Comedy or Musical are neither comedies nor musicals…I mean, seriously, The Tourist?” — Hollywood’s awards season has officially kicked into high gear. As a fan of TV, movies, pop culture, and pointy-headed overanalyzation in general, I’ve always enjoyed awards season (minus the extra traffic congestion that comes from living down the street from Grauman’s Chinese and the Kodak Theater).

Sure, maybe us entertainment lawyers seldom make it into the acceptance speeches (damn agents get all the credit). And certainly no one has ever memorably crowed “you like me! you really like me!” to a studio director of business and legal affairs. (If Spielberg would have won for Jaws in ’76, maybe he’d have thanked his lawyer, Bruce Ramer — after whom Spielberg supposedly named “Bruce,” the mechanical shark featured in the film — but unfortunately for the entertainment legal community, Spielberg never made it to the podium. I guess Spielberg himself might have been a little bummed about it as well.) As it turns out, though, the apparently legally-cursed Globes represent the one awards show whose recent history has provided several opportunities for us entertainment lawyers to get in on the awards season fun.

(Given the economy, I suspect lawyer voodooists trying to drum up business. J’accuse.) Continue reading the full story . . . »

Steve Smith

Contact Steve

I was in GameStop last week buying my daughter Hawx 2, a T-rated simulated aerial combat video game. As I was standing in line (with all the dads buying M-rated Call of Duty: Black Ops for their under-17 year old sons, while pretending to buy it for themselves), I was drawn to the display of the Microsoft Kinect, the new hands-free controller that is designed to allow the ultra-interactivity of the Nintendo Wii, but without any controller at all. You (and, apparently, one million of your likeminded early adopter friends) stand in front of a 3D camera system, which translates your movements in real life into the movement of your avatar on the screen. No longer is the pushing of a button or the swinging of a controller rendered as the action of your avatar; rather, your actual fingers, hands, arms, face and body are re-rendered as the action of your avatar exactly as you performed them. Ladies and gentlemen, at long last, the future is here (minus the flying cars, hoverboards, food hydrators, and everything else we were promised in Back to the Future, Part II).

I immediately thought of it as acting in a play. The real you is performing the movements from the gallery, while the virtual you is acting them out, in costume and on set, on the stage of your TV. It is like playing cops-and-robbers in the playground, except no one else need be present and no playground is required.

Of course, since I am a lawyer and never turn my lawyer brain off, I immediately recalled the most interesting question that was asked during November 2’s Supreme Court oral arguments in Schwarzenegger v. Entertainment Merchants Association, the decision in which is expected to come down sometime in Spring 2011. Continue reading the full story . . . »