Picture a sexy young bride, reclining sensuously on the nuptial bed.  Smiling seductively, she lifts her wedding dress — a stretch white mini — to give her new husband a glimpse of the lingerie covering her private parts.

Come to think of it, you don’t have to imagine this scenario.  You can see the photograph of pop artist/bride Noelia Monge and her manager/husband Jorge Reynoso in Issue 633 of TVNotas magazine.  (A decidedly less scandalous photo of the happy couple is here on the right.  Sorry, folks, this is a family-friendly blog.)

Didn’t know they were married, did you?  Neither did anyone else — until their hitherto personal wedding photos appeared in the aforementioned gossip magazine, unbeknownst to the couple.

In a case that even federal judges had to admit read like a telenovela, Monge and Reynoso sued publisher Maya Magazines in Los Angeles federal court, alleging copyright infringement and misappropriation of likeness.  The trial court dismissed the claims and held that the publisher had the right to publish the photographs under the fair use doctrine, which provides refuge from infringement claims when the use of copyrighted material is for purposes such as news reporting.

But last month, the Ninth Circuit reversed, holding that TVNotas’ publication of the happy couple’s extra-happy-looking photos was not protected by the fair use doctrine, setting up Monge and Reynoso to claim some damages.  But in a world where celebrities are constantly battling to limit their exposure in the tabloid press, how did Monge and Reynoso win this fight?  And what does it mean for the constant struggle between celebrities and publishers? Continue reading the full story . . . »

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Dan Nabel

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Ben and Jerry’s Ice Cream has always been a company with a sense of humor.  As Ben & Jerry’s spokesman Sean Greenwood says, “We just do fun.”  With flavors like “Chubby Hubby,” “Cherry Garcia,” “Phish Food,” and “Imagine Whirled Peace,” who could disagree?  At times, the company has even been accused of having a little too much fun.  Some of its racier-named flavors include “Karamel Sutra,” and, of course, the controversial “Schweddy Balls.”  The latter flavor was inspired by an Alec Baldwin SNL skit and opposed by groups like One Million Moms, which said, “[t]he vulgar new flavor has turned something as innocent as ice cream into something repulsive.”

Perhaps attracted to the scent of something innocent and pure being defiled, a North Hollywood pornographer called “Caballero Video,” recently released some stomach-churning titles under the moniker, “Ben & Cherry’s.”  The pornographer’s lascivious exploits include:  Harry Garcia (Cherry Garcia); Boston Cream Thigh (Boston Cream Pie); Chocolate Fudge Babes (Chocolate Fudge Brownie); New York Super Fat & Chunky (New York Super Fudge Chunk); and Peanut Butter D-Cups (Peanut Butter Cup).  The complete list of saucy titles (including those too racy for even this blog to reprint) is available in this court order.  And of course, pictures of the films’ bawdy packaging that couples the traditional pastoral Ben & Jerry’s theme with NSFW pictures are available for those who “have learned to work the Google on the Internet machine.” (Note:  That link points to the IMDB page for Blades of Glory, not pornography.  What kind of blog do you think this is?)

Now, Ben & Jerry’s has filed suit in New York federal court against Caballero Video, alleging federal trademark dilution, federal trade dress dilution, federal trademark infringement, federal trade dress infringement, federal unfair competition, common law unfair competition, dilution and injury to business reputation, and deceptive trade practices.  The Court has already issued a temporary restraining order, ordering Caballero Video to stop offering the 10 allegedly infringing titles, remove all online mention of the X-rated films, and stop using the trademarked Ben & Jerry’s packaging — at least until a final decision is rendered in the case.

But did the Court err in issuing the temporary restraining order?

Continue reading the full story . . . »

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Aaron Moss

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The right of publicity — the legal doctrine that protects the right of celebrities to control and profit from their names, likenesses, and other aspects of their identities — is a familiar topic here at Law Law Land.  But it can be a more complicated subject than we sometimes give it credit for.  Unlike copyright and trademark law, which are (mostly) defined by federal statutes that provide for consistent nationwide rules, the right of publicity is exclusively a creature of state law.  And, thanks to the patchwork of inconsistent and often confusing state laws that have evolved over the years (with heavy influence and lobbying from the heirs of particularly valuable/merchandisable celebrities, like Elvis Presley and Albert Einstein), its application to the dearly departed can get pretty quirky.  For example:

Are you a celebrity who died as a California resident?  Great — your heirs can exclusively exploit your name and likeness for another 70 years!  Oh, were you actually a New York resident when you died?  Just kidding, then, your heirs are totally out of luck, and unauthorized t-shirts with your face will be hitting stores shortly.  That is, unless, your heirs sue in Washington or Indiana, which purport to apply their right of publicity laws to any individual, regardless of whether the celebrity’s state of domicile recognizes the right.  Unless, of course, the federal courts decide that those laws are unconstitutional (a conclusion reached by a Washington district court in a 2011 case involving Jimi Hendrix; the Ninth Circuit will be making its own ruling soon).  And even among those states that expressly recognize a post-mortem right of publicity, there is broad disagreement about the length of protection afforded, the retroactivity of the statutes, and a whole host of other issues.  Got it?  Don’t worry, nobody else does either.

Just ask the lawyers for the estate of Marilyn Monroe, whose recent unsuccessful right of publicity lawsuit could be “Exhibit A” in renewed effort to enact a federal right of publicity law. Continue reading the full story . . . »

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Jesse Saivar

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 Q: A producer has offered to option my script.  I’m just starting out so the numbers are pretty low (it’s a 12 month option for $1,000 with a purchase price of the WGA scale).  I’m cool with that but have one problem with it:  what happens if she turns around and sells the option to a studio for a lot of money?  I think that’s what she plans to do.

A:  Pat yourself on the back, my friend.  You just spotted an issue that is often overlooked in standard option agreements.  To answer this, let’s talk a little background. Continue reading the full story . . . »

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Rachel Wilkes Barchie

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For the most part, employment law may appear to lack the glitz and glamour of the entertainment legal issues we usually cover here at Law Law Land.  But what the field might miss in star-studded premieres and ritzy award shows, it more than makes up for in amazingly entertaining fact patterns involving fascinating forms of employee misbehavior.  And sometimes, just sometimes, the wacky world of California employment law intersects with the wacky world we call Hollywood.  Today’s case-in-point involves an entertainment company, a complaining employee with a colorful nickname for his boss, a termination, and — of course — a lawsuit.

Rewind for a moment to 2008 — a year in which America said goodbye to Heath Ledger, hello to Barack Obama, and, depending on one’s political persuasion “You betcha” or “Dear God why?” to Sarah Palin.  And that year, our plaintiff, Andrew McDonald, was a creative director at a visual post-production studio called RIOT.  Defendant Ascent Media Group subsequently merged RIOT with Method Studios, after which Method Studios’ creative director Alex Frisch was named director of creative visual effects and became McDonald’s boss.  Then things got interesting. Continue reading the full story . . . »

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Jesse Saivar

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Q:  Is there a big difference between an option for a screenplay and an option for a book?

A:  Did you ever get the magazine Highlights when you were a kid? The one they had in dentists’ offices which had Goofus and Gallant and the hidden pictures game?  If so, you probably played the other game in the magazine where you’d be shown two similar pictures side by side and you’d have to spot the differences.  If there were a Highlights for lawyers, we could play the game with a screenplay option and a book option because the two do appear so similar on the surface.  On closer inspection, however, you’d find a few subtle differences and one major one:  the book option would include a section referring to the author’s “Reserved Rights.” Continue reading the full story . . . »

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