Posts In "Litigation"

Litigation




A “Dirty” Lawsuit: How a Sex Scandal Could Impact Online Defamation Law

A former high school teacher and NFL cheerleader sleeps with her student.  She faces widespread scorn, including scathing Internet comments.  Despite the scorn, she becomes engaged to the student.

It sounds like the plot of a made-for-TV movie.  But these facts form the basis of a landmark defamation lawsuit that could have ramifications for any website that allows users to post comments.

  Continue reading the full story . . . »

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“River Crabbing” Chinese Search Engine Battles for Freedom of Expression in the U.S.

Since then, this goal has often been cited by the Chinese government as a reason for Internet censorship.  In Mandarin, the word “Harmonious” is pronounced héxié (the accent marks here indicate rising tones).  However, by changing the tones slightly to héxiè (a rising tone followed by a falling tone) the word changes from harmonious to “river crab” – which has become Internet slang for government censor.  So when something suddenly disappears from the Internet in China, people often joke that it has been “river-crabbed.”

Although river-crabbing does not happen here in the United States, last week a federal judge had to address a related problem:  Does the First Amendment allow Baidu.com (China’s version of Google) to censor political speech from its search results for users here in the United States? Continue reading the full story . . . »


Fun with Facebook

Recent Cases Involving Facebook 

 

I recently attended a presentation by retired judge Jacqueline Connor on the effect of social media in the legal system.  After listening to her talk about a number of highly amusing cases, I went online to see just how many such cases are now out there.  I was shocked to find that in the month of February 2014 alone, there were over 100 legal opinions issued in the U.S. just involving Facebook.  While some of these cases were more disturbing than amusing, there were a few gems that cried out to be written about.

Continue reading the full story . . . »


Federal Judge Declares Sherlock Holmes Characters in Public Domain. Sort of.

Federal Judge Declares Sherlock Holmes Characters in Public Domain.  Sort of.

 

Comedian Dmitri Martin has a great joke about the expression “sort of.”  Although normally a fairly meaningless expression, saying “sort of” after certain things suddenly becomes very important.  Such as after the phrase “I love you,” or “You’re going to live,” or “It’s a boy.”  I immediately thought of this joke after reading a recent order issued by a federal court in Illinois.  The order declared that Sherlock Holmes, Dr. Watson, 221B Baker Street, the evil Professor Moriarty, and other elements of Sir Arthur Conan Doyle’s beloved works have fallen into the public domain.

 

Sort of.

Continue reading the full story . . . »


“Hustlin’” to a Legal Victory: Rick Ross and the Right of Publicity

California gives you the right to profit from your own identity.  But what if you assume somebody else’s?

Rick Ross is famous for rapping about cocaine.  Ricky D. Ross is famous for selling it.  Ross (the cocaine dealer) alleged that Ross (the rapper) misappropriated his name and likeness for his own financial benefit.  Or as one person wrote: “Rick Ross sued Rick Ross for being Rick Ross.”

A recent California appellate decision settled the dispute.  But before revealing who prevailed (hint: it was a Ross), some background on the Ross v. Ross feud, and the right to publicity.

Ross v. Ross

Ricky D. Ross “organized and ran a vast cocaine-dealing enterprise” in the 1980s, selling “as much as $3 million worth of cocaine a day.”  He “eventually amassed a fortune worth hundreds of thousands of dollars.”

As sometimes happens when you sell $2.5 billion of an illegal drug—that’s “billion” with a “b”—Ross was arrested and convicted of drug trafficking.  End of story, right?  Not for Ross.

Ross proceeded to: uncover a ring of “dirty cops” from behind bars; help free 120 wrongly convicted people; earn early release from jail; get arrested again for—what else—dealing cocaine; become entangled in the Iran-Contra scandal; and then earn his release again.  In the process, he became “the subject of numerous television shows focusing on his erstwhile criminal empire.”

Ross’ notoriety did not escape the attention of William Leonard Roberts II.  Acknowledging that Ross’ life story “grabbed him,” Roberts left his job as a correctional officer, and starting rapping about dealing cocaine.  His newly adopted stage name? Rick Ross.

As Ross (the cocaine dealer) sat behind bars, Roberts (the rapper) rose to fame.   Roberts scored a hit with the song “Hustlin.’”  (Sample lyrics: “Everyday I’m hustlin’”—repeated 20 times.)

This time, Roberts’ notoriety didn’t escape Ross’ attention.  While behind bars, Ross learned that Roberts was using the name “Rick Ross.”  When he left jail, Ross filed suit, alleging that Roberts violated his right to publicity.

The Right of Publicity

The “right of publicity” gives you the right “to control the commercial use of [your] name, image, likeness, or other unequivocal aspects of [your] identity.”  The right “has been traditionally understood to apply only to the use of a person’s name or likeness.”  However, California “courts have expandedthe scope of the right . . . may apply to the use of virtually anything that evokes identity.”  For example, a federal appellate court famously found that a company violated Vanna White’s right of publicity by dressing a robot in a “wig, gown and jewelry” and posing the robot “next to a Wheel-of-Furniture-like game board.”

The right of publicity is not unlimited, however.  Courts have held that the right to prevent people from using your likeness must be balanced against the right of self-expression under the First Amendment.  To that end, the California Supreme Court has observed that you can use another person’s likeness if your use is “transformative”—that is, if it “adds new expression.”

The Court’s Decision

Against this backdrop, the appellate court held that Roberts did not violate Ross’ right of publicity because Roberts’ use of Ross’ identity was transformative.  The court explained that Roberts “was not simply an imposter seeking to profit solely off the name and reputation of Rick Ross. Rather, he made music out of fictional tales of dealing drugs and other exploits some of which related to plaintiff.”  In other words, “[u]sing the name and certain details of an infamous criminal’s life as basic elements, he created original artistic works.”

The court acknowledged that Roberts may have “initially gained some exposure through use of the name Rick Ross and the reputation it carried.”  But the court noted that “[i]t defies credibility to suggest that Roberts gained success primarily from appropriation of plaintiff’s name and identity, instead of from the music and professional persona that he . . . created.”

The opinion is entertaining—it’s not every day you see judges using the word “hustlin’”—and does a good job of grappling with a difficult question.  But it also leaves certain questions unanswered.  When did Roberts’ use of Ross’ likeness become transformative?  When he signed a record deal?  When he scored a hit single?  As law professor Shaun Martin notes,  “it’s a very difficult line to draw between ‘derivative’ and ‘transformative’ works.”

Figuring out where to draw that line is a question for another day (and another lawsuit).  The important takeaway (for rap fans, at least) is that Roberts can keep “hustling’”—and doesn’t need to change his stage name to do so.


Requiem for a Ridiculous Lawsuit

Last month, I wrote about some notable examples of film and television producers being sued or threatened for using other peoples’ creations without permission.  Examples included Emerson Electric suing NBC after Claire from Heroes stuck her hand in an “InSinkErator” brand garbage disposal; Coca Cola Companythreatening legal action against an Italian film distributor over a film in which Jesus drinks a can of Coke in the desert; Louis Vuitton suing Warner Brothersover the unauthorized use of their luggage being used by a character who pronounced it “Luis” Vuitton in The Hangover Part II;  and Mattel suing MCA Records over the song “Barbie Girl.”  As if on cue, another such example has just arrived.

This month, a judge ruled on a lawsuit brought by Faulkner Literary Rights, LLC against Sony Pictures, Inc. for the studio’s use of a single line from the book Requiem for a Nun (written by that Nobel Prize winning William Faulkner guy) that was paraphrased and attributed to the author in the movie Midnight in Paris (directed by that controversial Woody Allen guy):

Original quote from Requiem for a Nun

Paraphrased quote in Midnight in Paris

“The past is never dead.  It’s not even past.” “The past is not dead.  Actually it’s not even past.  You know who said that?  Faulkner, and he was right.  I met him too.  I ran into him at a dinner party.”

  Continue reading the full story . . . »