Posts In "Right of Publicity"

Right of Publicity




Monkey See, Monkey Sue

On behalf of Law Law Land, I would like to apologize to HBO, the New York courts, and basically, the world at large. A few months ago, my colleague Elisabeth Moriarty suggested that a creative Indonesian monkey should, perhaps, be afforded copyright rights in his adorable self-portrait. That suggestion must have angered the intellectual property gods, who have now unleashed their wrath upon the simian world. Some bozo, I recently learned, sued a cartoon ape for purported right of publicity violations and infliction of emotional distress. Rest easy, Magilla — no one is on to you for that failed bank robbery attempt. I’m talking about the lawsuit recently filed by Johnny Devenanzio… (If you are wondering who this Johnny fellow is, don’t worry, you are not alone.)

For those of you who are not MTV reality show devotees, let’s get you up to speed. Johnny got his start on the Real World Key West, a “true story…of eight strangers…picked to live in a house…work together and have their lives taped…to find out what happens…when people stop being polite…and start getting real.” Johnny then appeared on The Challenge — which used to be called The Real World-Road Rules Challenge, at least back when anyone I know cared about The Real World, or Road Rules, or any kind of challenge that might pit the two against each other — and he continued to make a fool of himself on numerous The Challengespin-offs (all of which involved copious amounts of alcohol, the occasional fist fight, and a fair amount of stupidity). These shows portrayed Johnny as an arrogant, scheming meathead who likes to stir up drama, earning him the nickname “Johnny Bananas.” (Ironically, you can also hire Johnny to give lectures on alcohol awareness, humility, and conflict resolution. That sounds like a great idea…)

Now, let’s get to the lawsuit. With a little help from lawyer Stephanie Ovadia (yes, the same lawyer who represented our beloved Lindsay Lohan in some of her most entertaining lawsuitsever), Johnny is suing the people behind the hit HBO series Entourage (R.I.P.). The lawsuit is based on a storyline involving a fictional cartoon called Johnny’s Bananas in which Kevin Dillon’s character, Johnny “Drama” Chase, lends his voice to a cartoon ape, aptly named Johnny, who tends to go “bananas” when things don’t go his way. Angered by this storyline (and likely upset after his lawyer pointed out that he has a striking resemblance — both mentally and physically — to an unattractive, hot-headed cartoon ape), the real-life Johnny is now claiming that HBO is trying to capitalize on a nickname that he “is solely responsible for creating.” (Apparently Johnny needs to brush up on his Chicago mobster trivia, as he’s not the only “Johnny Bananas” around.)

In his complaint, Johnny seeks an injunction to bar HBO, Time Warner Cable, and Entourage creator Doug Ellin from (a) distributing or broadcasting Entourage’s final season in any way, shape, or form, and (b) manufacturing and selling Johnny’s Bananas merchandise. Johnny also seeks compensatory and punitive damages for the tremendous emotional distress he suffered as a result of Entourage’s “offensive and disparaging” use of his nickname. Does Johnny have a shot at victory? Continue reading the full story . . . »


Q&A: What Life Rights Do I Need to Write a Screenplay About Someone Who Died But Has Surviving Family?

Q: I have a question that I’ve been toiling over for months. I’ve done some research on it and cannot find a clear answer. I’m beginning to work with a writer on a screenplay on someone who died about 20 years ago. She has surviving brothers, but her parents are dead and she never married or had children. What type of life story rights do we need to acquire to tell this story — a screenplay that could potentially turn into a feature film? I guess the first question should be do I even need to buy or acquire the life story rights? Can I just change her name?

A: First of all, there is really no such thing as life story rights. There is the right against being defamed. There is the right against certain private facts about you being publicly disclosed without your permission — the New York Times would be violating it if its reporter sneaked in your bedroom, copied your most secret diary entries, and published them. And there are certain other rights of this nature. But there is no life story rights. When you buy life story rights, what you really “buy” is a promise from the subject of your story that they will not sue you for defamation or any number of other possible violations of their privacy rights.

In theory, you can make a movie about anyone alive without obtaining their “life story rights,” as long as the movie doesn’t defame the subject and doesn’t violate all these other privacy rights. In practice, that’s hard to do and no matter how much you try not to violate these rights, you can’t stop someone from alleging you did. So practically, in most cases, when a movie is made about someone alive, “life story rights” are acquired.

Now let’s focus on the dead. Perfect timing — Halloween is less than a month away. The dead can’t be defamed. The dead have no rights of privacy. The dead have no say about how they’re portrayed in movies. You can say anything you want about the dead, true, false, or in between. Well, not all of the dead. Continue reading the full story . . . »


In Defense of Lindsay Lohan (But Not of Her Legal Claims)

I love Lindsay Lohan. Really, I do. I think she’s funny, smart, and an all around good time waiting to happen. Sure, as an actress, she’s had her share of ups and downs. But who hasn’t? As a singer…well…mostly just downs. She’s also been unrelentingly stalked by paparazzi for the entirety of her adult life, getting caught in far more than her share of compromising moments in the process. Well I say, leave Lindsay alone! If I had cameras following me since before I started shaving, I can assure you, it would not be pretty either (riotously entertaining, yes, but not pretty). So I try to cut Lindsay a lot of slack. But man, oh man, is her latest escapade testing the limits of my adoration.

Fresh off settling her lawsuit against E*Trade for a Super Bowl ad featuring a “milkaholic” baby named Lindsay and threatening (via Momager Dina Lohan) to sue the producers of Glee for some off-color Lohan-based Spanish lessons, Lindsay recently filed suit against rapper Pitbull for using her name in his song “Give Me Everything.” The offending lyric in question: “Hustlers move aside, so I’m tiptoein’, to keep flowin’ / I got it locked up like Lindsay Lohan.” Frankly, it is difficult to fully convey the absurdity of this lawsuit. Nevertheless, my enduring loyalty demands that I try.

Holding my nose and looking a little deeper, I see there are two claims apparently being made here: defamation and right of publicity. (From the outset, I should note that Pitbull’s stated defense of  “I thought it would be helping [her] career and keeping [her] relevant”doesn’t fly.) But let’s parse each claim and see if there’s any chance that my hero will succeed. (Spoiler Alert!!! No, there is not.) Continue reading the full story . . . »


Filmed Without Permission

Last week, KROQ’s Kevin & Bean interviewed Castle actress Stana Katic, who is starring in a new movie called For Lovers Only. The film is a “sexy love story set in Paris” and was “shot in the spirit of the French New Wave” (which sounds to me like a blend of smooth jazz, a Monet painting, and a nude beach).
The fascinating thing about the film is that it was produced by just five people. The small crew drove around France in one car using a handheld camera, and would haphazardly discover new filming locations (ironically, quite similar to the formula for a Jackass movie, though those are more “shot in the spirit of the American love of men being struck in the groin”). So although the script may have been rehearsed the night before, the location was often “TBD.”

Evidently unaware of the contingent of fascinated entertainment lawyers in the audience, Katic never discussed whether the film’s five-person crew obtained clearances or releases for anything or anyone they may have incidentally filmed. But from her description of the production, it seems possible — maybe even likely — that they didn’t. The film is currently available only through iTunes or at European film festival screenings. But although that whimsical approach to filmmaking may make for great promotional interviews on the radio, it could present a problem when filmmakers start looking for major worldwide distribution. Continue reading the full story . . . »


At Least One Girl Didn’t Want to Grow Up to Be Barbie

Now listen to my story ‘bout an actress named Donna.

In case you don’t recall The Beverly Hillbillies (read: are under the age of 40), the series (which ran on CBS from 1962 to 1971, and which has enjoyed a long life in syndication) followed the Clampett family, a group of poor yokels who strike it rich after accidentally discovering oil (“Texas tea”) on their generically Southern swamp, move to Beverly Hills, and inexplicably continue to drive around in a jalopy and dress like extras from The Grapes of Wrath. One of the show’s highlights was buxom, come-hither Clampett daughter Elly May, played by an actress named Donna Douglas, whose principal non-Elly May-related claim to fame is some obscure on-set philosophizing with Elvis during the shooting of Frankie and Johnny. (And one of its lowlights was a tragic 1993 attempt at a feature film — with Playboy model and Baywatch babe Erika Eleniak reprising the role of Elly May — which garnered such rave reviews as “Unbearable,” “Was this really necessary?” and “Four writers worked on the script, and they all should hang their heads in shame.”)

Last week, Douglas sued Mattel in federal court in Baton Rouge, Louisiana over the toymaker’s recent release of an “Elly May” Barbie, asserting claims for false endorsement under the Lanham Act, violation of the Louisiana right of publicity statute, common law misappropriation, and unjust enrichment. In her complaint, Douglas asserts that the packaging and publicity for the Elly May Barbie use Douglas’s photograph and name, and that the doll itself copies Douglas’s “distinctive attributes in the portrayal of the Elly May character.” Douglas also claims that she never endorsed the doll or gave Mattel permission to use her name or likeness to promote sales of the Elly May Barbie. As Elly May herself might say: “Well, come on, baby. Let’s wrassle.”

Aside from raising questions about Mattel’s marketing strategy here — I’m guessing this is a “collector’s item,” because have any adolescent girls ever even heard of The Beverly Hillbillies? — Douglas’s lawsuit highlights a potential collision between the right of publicity and the rights granted to copyright owners. Continue reading the full story . . . »


“The Best Legal Blog I’ve Ever Read!” – [Insert Big-Time Celebrity's Name Here]

Celebrities have a lot of influence over modern society. They influence how we dress (hey celebrities, can someone put an end to the unflattering skinny jeans trend, please?), how we talk (or had you not noticed your frattiest coworkers repeating “that’s hot” and “winning” ad nauseum), how we dance (who started this fist-pumping thing, anyway?), the way we vote (or whether we vote at all), and what we buy. Not surprisingly, companies take advantage of this bizarre phenomenon by paying celebrities to promote their products. For example, football great and ladies’ man Joe Namath showed off his shapely gams to endorse Beautymist pantyhose in a silly commercial, supermodel Heidi Klum strangely decided to lend her name and face to a fat-free fruit candy, and Oprah’s multi-sector Midas touch is so potent she has an “Effect” named after her.

Occasionally, a company might incorporate a celebrity’s quote into an advertisement to hype a particular product or service. For instance, the late suit designer and proprietor of “the most expensive store in the world,” Bijan, teamed up with the uber-expensive Rolls-Royce in a partnership that Bush the Elder (that’s right, George H.W. Bush himself) describes on a Santa Monica Blvd. billboard as “[a] class act designer partnered with a class act car.” It is probably safe to assume that Bijan/Rolls-Royce obtained permission to use George Bush’s name and quote on that billboard (and if not, I know a good lawyer). But, because we live in a world where people do not always ask for permission (or otherwise abide by the law), this billboard made me think about the limitations on using a celebrity’s quote in an advertisement. Continue reading the full story . . . »