Who’s Afraid of the Big Bad Privilege?

You may not know it to look at me, but I have a very macabre sense of humor. I adore the books of Edward Gorey and, in particular, The Gashlycrumb Tinies, a spot-on and (for those who are into tragic juvenile demise) hilarious parody of children’s ABC books in which each of the rhyming couplets recounts various unusual ways in which children have met ghastly fates: “A is for Amy who fell down the stairs. B is for Basil assaulted by bears. C is for Clara who wasted away. D is for Desmond thrown out of a sleigh…” (Not that I’m ever bored at work, but I’ve had a photocopy of “N” posted on my computer for years: “M is for Maud who was swept out to sea. N is for Neville who died of ennui.”)

I’m also a huge fan of Shockheaded Peter, a nightmarish and (again, for those who love young children meeting ironic fates…should my own daughter be concerned by this?) hilarious spectacle/stage production based on a 19th Century German book of children’s cautionary tales by Heinrich Hoffman, in which rude and naughty children all meet gruesome, yet well-deserved ends. Take, for example, “Fidgety Phil,” the tale of a boy who refuses to sit still at the dinner table and is impaled by cutlery when he pulls off the tablecloth at dinnertime. Or “Snip Snip,” in which an incessantly thumb-sucking boy bleeds to death after an evil tailor cuts off his thumbs (his mother reacts simply by saying toldya so!). The last line of virtually every song concludes with the matter-of fact sentiment: “And he was DEAD.” “And she DIED.” The end. You can imagine what happens in “The Dreadful Story of Harriet and the Matches”…

Well, remember the Troubling Tale of the Two-Steppin’ Toddler? No, it isn’t in the Second Act of Shockheaded Peter, but it certainly qualifies as a Litigation Cautionary Tale in my book.

This Dreadful Story — or, as it is more commonly known in legal circles, the Lenz v .Universal case — began with a dancing baby. We’ve covered this ground before, but let’s review the highlights: Continue reading the full story . . . »

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Could a Bunch of Crazed Teenage Justin Bieber Fans Actually Be Felons? Never Say Never

As the mother of a 5th grader, I am well-versed in Justin Bieber.

I’ve been to his concert, and I enjoyed it. I know his songs, and maybe I’ve been caught letting out a “baby, baby, baby” or two. I even know that his mother’s name is Pattie and his favorite color is purple (somewhere Prince has to be saying to himself, “find your own color!”). And, of course, I shared a moment of outrage with my daughter when Justin was robbed of his Grammy by Esperanza Who? I often feel like I know Justin Bieber like I used to know Duran Duran. (For the record,Nick Rhodes was way cuter than Simon Le Bon. Quite a scary thought now, though…yikes!) The swanky hair, the smile, the dance moves, whatever “it” is, he’s got it. Even my four-year-old twins giggled with excitement as they watched Justin perform at the Grammys with “The Karate Kid” (and I don’t mean Ralph Macchio, which would have been about equally entertaining but ten times creepier).

Last week, in particular, was huge in Bieber Land. He performed at the Grammys (daughter was there, check), his inexplicably 3D biopic Never Say Never premiered nationwide, complete with a “purple carpet” Los Angeles premiere (daughter attended private advanced screening, check), and Glee aired its Justin Bieber Experience episode (come on, it’s Glee, mandatory check). Darth Vader covered his biggest hit in spoken word. Over the weekend, he won the MVP award at the NBA’s annual celebrity game (beating out NBA Hall of Famer Scottie Pippen). A few days ago, I even saw a 50-something-year-old man at a bar scrawl “(Baby x 3) + Oh” on his cocktail napkin, then hand it to a friend who, with a few flicks of his pen, made it “(Baby x 3) + Oh No.” And Bieber boasts the best nickname for his obsessive fan-base — Beliebers — of any pop act since Clay Aiken (anyone else rememberClaymates?). What could be wrong with any of that?

More than a certain group of crazed Beliebers who attended the recent the Orlando VIP premiere of Never Say Never could have ever imagined. Continue reading the full story . . . »

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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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Register Pac20.com Before It’s Too Late!

Last week, Pac-10 Commissioner Larry Scott learned the hard way that conference expansion is a little trickier than subbing a “12” in for the“10” in your logo.

As many news outlets reported over the weekend, the soon-to-be-Pac-12 conference has discovered that the domain pac12.com has already been claimed by a fan of the late (unless he isn’t) Tupac Shakur, who has been using the site to offer an Amazon widget selling 2Pac albums. The Pac-10 has responded by filing a claim with the World Intellectual Property Organization, seeking control of the Pac12.com site.

Most people seem to assume this is nothing but a momentary hiccup in the conference’s plans. After all, the Pac-10 is a well-established — and well-funded — preeminent national sporting organization, and a one-page CD ad with the heading “Tupac Lives!” doesn’t exactly strike fear into the hearts of conference partisans everywhere. But, if it can’t (or won’t) cough up a check with enough zeroes on it in order to buy the Pac12.com domain peacefully, the conference may have a real problem wresting away control of the domain by legal force.

Why is that, you ask? The answer requires us to first play a quick game of alphabet soup.

Continue reading the full story . . . »

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The Shirley Sherrod Story Is Back…and Everything We Said Before Stands

If you’re a dedicated politico or a devoted reader of Law Law Land, you’ll remember the saga of Shirley Sherrod, the USDA official who was unceremoniously fired by the Obama administration in July 2010 after conservative blogger Andrew Breitbart posted an incendiary video to his site in which the African-American Sherrod seemingly confessed to discriminating against a farmer because he was white. Within days, it emerged that Breitbart had actually selectively edited down a longer video, in which Sherrod’s “confession” set up a broader lesson about personal and racial reconciliation, with Sherrod eventually befriending the farmer and saving his farm. Secretary of Agriculture Tom Vilsack promptly offered Sherrod her job back, while the NAACP — which had initially publicly condemned Sherrod — quickly released a statement saying it had been “snookered.” But the damage was done, and Sherrod declined to return to the USDA.

At the time, pundits seemed to treat an eventual lawsuit from Sherrod as an inevitability. Liberal bloggers released reports suggesting that a lawsuit was basically imminent, while conservative legal commentators quickly explained why they thought that seemingly imminent lawsuit would fail. And then, of course, nothing happened. But no longer.

This weekend, while attending the annual Conservative Political Action Conference in Washington, D.C., Breitbart was served with a lawsuit from Sherrod, bringing claims for defamation, false light, and intentional infliction of emotional distress. If you’re interested, you can check out the complaint — which, interestingly, does not name as a defendant Fox News, which initially picked up Breitbart’s blog post and fanned the flames of the incipient firestorm of controversy.

But more importantly, you can remind yourself why our own Rachel Valadez argued that, even if the legal road ahead of her would prove long and challenging, even Tea Partiers should want Sherrod to sue…and win. Continue reading the full story . . . »

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This Valentine’s Day, Ask Yourself: What’s So Funny ‘Bout Peace, Love and…Popcorn?

Whether you are a hopeless romantic or a cynical sort (read: single person) who feels that Valentine’s Day is just an excuse for card companies to sell more paper products (how environmentally unsound!), you simply can’t escape Cupid’s arrow this month — assuming you define “Cupid’s arrow” as incessant advertising about Valentine’s Day. John Paul Young called it way back in 1978: everywhere you look around, there are red roses, and pajamas with hearts on them, and canoodling couples tearfully opening diamond engagement rings together, and candy and just about any other foodstuffs that can somehow be branded with a “love” theme.

You may find Valentine’s Day cheesy, or perhaps even annoying. I get it (believe me, I get it — I spent an hour last night cutting 20 valentines out of red cardstock for my daughter’s second grade class project, and have the numbing, carpal-tunnel like pain in my right index finger to prove it…). But can you truly take issue with something that attempts to foster peace, and love, and harmony? I never thought I’d turn to NASCAR for pearls of wisdom, but really, who doesn’t love love?

Well, at least one small business owner in Texas thinks that the Valentine’s Day experts at 1-800-FLOWERS actually hate love. And peace. Probably puppies too. And possibly America and freedom, as well, but let’s not get carried away. Continue reading the full story . . . »

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