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.”

schweddy_ballsPerhaps 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 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

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

After being barred from going after opposing quarterbacks in 2012, Jonathan Vilma is now going after the biggest bounty of them all — NFL Commissioner, Roger Goodell.  Last week, Vilma sued Goodell for defamation based on Goodell’s accusations that Vilma participated in the New Orleans Saints’ bounty program.

As any self-respecting sports fan (or anyone else who doesn’t live here) knows by now, the NFL recently discovered that Saints coaches and players created a system by which the players would receive monetary bonuses for knocking opposing players out of a game with injury.  (And you know a scandal is serious when it gets its own Wikipedia page.)  Goodell claims Vilma was at the center of that program, going so far as to promise $10,000 of his own money to anyone who knocked Brett Favre (and later Kurt Warner) out of a playoff game.  Vilma insists that he did not take part in the bounty program, that he never offered money to his teammates to take out Brett Favre or Kurt Warner and that Goodell had no reasonable basis on which to make those allegations.  Vilma seeks unspecified damages for the harm to his reputation caused by Goodell’s statements.

As my regular readers (somebody must read this stuff, right?) should know by now, I’m a football fan, so the idea of an NFL player suing the almighty Roger Goodell is fascinating stuff.  Since becoming commissioner in 2006, Goodell has become the judge, jury and executioner regarding player (and coach) misconduct.  Players who get in trouble must go meet with Goodell (presumably to kiss the brass ring, or maybe just something that rhymes with the “brass” part) and then await his punishment without any rules or guidelines on how that punishment will be administered.  But don’t worry:  if the player (or coach) believes the punishment is unjust, he can always appeal to — guess who? — Goodell.  Although Goodell has, on occasion, reduced a player’s punishment, it happens rarely and there is little explanation of why.  (Doesn’t really seem fair to me, but I’m just a Bills fan…and Bills players never do anything wrong…  Or, in recent years, right.)  It’s safe to assume that more than one NFL player out there (like Goodell’s BFF James Harrison) would offer a chunk out of his salary to have someone take Goodell down a peg or twelve.

So, the real question for us here at Law Law Land is:  does Vilma stand any chance of winning and forcing Goodell to change his ways?  Probably not.  Here’s why.


Continue Reading

Let’s play a game.  It’s called Guess-Who-the-Trademark-Owner-Is.  (I wanted to call it “Guess Who,” but didn’t want to risk confusing you with products/services of Hasbro or The Guess Who.)  Wait!  Don’t stop reading yet!  This will be fun.¹ Sort of.²

Here is the game.  Imagine you walk into a supermarket to get some food for a party.  Once inside the supermarket, you are uncontrollably lured to the deli counter by the siren call of fried chicken.  You look down at the chicken deciding what type to purchase for the party.  You settle on the “Chipotle Spicy Fried Chicken,” because you want to impress your friends by showing them that you can handle spicy food.  (Sadly, deep down, you know that chipotle isn’t really that spicy and that your friends know this too.  Who are you kidding anyway?)

Now, guess what company cooked up the delicious looking Chipotle Spicy Fried Chicken that you selected (right side of the picture below)?

one

After you guess, continue reading to find out whether you win a prize or not.

 
Continue Reading

On a Saturday night in September, I took my wife to the first ever “Call of Duty” convention, hosted by Activision Blizzard inside a hangar on the old airfield where Howard Hughes built the Spruce Goose. Did I tell her ahead of time that I was taking her to a nerd convention where the only food available would be burgers and fries from a recreated fictional in-firstgame restaurant called “Burger Town?” No way! I told her I was taking her to a Kanye West concert! Which was kind of true.Kanye was the “big performance” at the end of the geekfest (which explains why increasingly better looking people started showing up as time went by). Unfortunately, even Kanye’s harem of near-naked dancers could not distract from the utter awfulness of Kanye’s performance. Worst. Concert. Ever. (And yes, he did have an I-am-a-Greek-god theme going on in the background.)


Continue Reading

For those of us (males) who entered adolescence in the early ‘90s, Angelina Jolie is a semi-celestial being whose very presence makes us want to cry out “we’re not worthy.”  Okay, so maybe the 13 year-old in me still wants to be Crash Override spelling out “CRASH AND BURN” for Acid Burn after defeating The Plague.  But that


Continue Reading

Remember the “senior superlatives” from your high school yearbook? Maybe you were voted “most likely to succeed” or “most likely to be a rock star.” Me? My dear classmates graciously awarded my best friend and me the title of “Most Likely To Be in an X-Rated Movie.” (It was unclear whether we were supposed to star in it together or what.) At the time, I pretended it was a compliment, smiled and curtseyed, and then secretly vowed to spend the rest of my life proving them wrong. Well Bellingham High School Class of 2002, now I realize what you actually meant to say: Amber M. Burroff, “Most Likely To Write a Sassy and Salacious Legal Blog About an X-Rated Movie.”

So, here’s the scoop. In April 2009, Arrow Productions, Inc., owner and distributor of Deep Throat — a tastefully-titled carnal classic whose plot (the sexual adventures of a sexually frustrated woman who is in search of the saucy secret to the female orgasm) is surpassed in greatness only by its tagline (“How far does a girl have to go to untangle her tingle?”) — filed suit against VCX Ltd. and its owner, David Sutton, alleging a variety of claims for copyright and trademark infringement arising out of VCX’s unauthorized distribution of Deep Throat. According to Arrow’s complaint, VCX and Arrow are both in the business of “selling prerecorded sexually oriented motion pictures for personal home use, presently and, in recent years, in DVD format and previously in VHS videotape format.” (Translation: “we sell porn.”) And in addition to competing for sales of Deep Throat, Arrow and VCX have both long distributed one of the other seminal classics of the “Golden Age of Porn,” Debbie Does Dallas.

Last month, though, after two and a half years of down-and-dirty legal combat, Arrow and VCX suddenly settled the lawsuit, with the parties agreeing that Arrow would hold the exclusive rights to Deep Throat, while VCX would move forward as the exclusive distributor of Debbie Does Dallas. So now that this long-running battle over two titans of adult film history has come to a sudden and anti-climactic finish, what lessons can we learn?
Continue Reading

While I most often write on Law Law Land about copyrightsInternet issues, and various things Hollywood, the bread and butter of my practice is employment litigation: more specifically, representing employers who are sued for wrongful termination, discrimination, sexual harassment, and/or wage and hour claims. In California, employment laws tend to favor employees, and like any employer, Hollywood employers are vulnerable to employment lawsuits when they don’t cross their T’s and dot their I’s (and sometimes even when they do).

The Hollywood employment lawsuit du jour was brought against MTV by a former employee on the show The Hills. Do you remember that trip to Costa Rica the cast took for the 100th episode of the show? Yeah, me neither — as much as I love me some Justin Bobby/Audrina drama (almost as much as I love James Franco and Mila Kunis’ spoof of them during the writers’ strike), I just couldn’t stomach K-Cav as leading lady. [Ed. Note: Did any of the last sentence mean anything to you, dear readers? No, me neither.] But this Costa Rica trip will now live on in infamy, not only as the trip where Justin Bobby apparently wore a Confederate flag hat, but also as the trip that fueled this lawsuit.

According to the complaint, Eliza Sproul was a Field Clearance Coordinator/Production Coordinator on The Hills and accompanied Kristin and crew to Costa Rica. There, her employment “took a turn for the worse” when she was allegedly pressured with drugs, sexually harassed, and forced to work long hours until she “essentially broke down” from exhaustion. The complaint was just filed on October 18, so MTV has not yet filed any responsive papers. But I’m going to put on my employment litigator hat for a moment to analyze Ms. Sproul’s claims.
Continue Reading

Yelp.com describes itself as “the fun and easy way to find and talk about great (and not so great) local businesses.” It proclaims that “[a]s of August 2011, more than 63 million people visited Yelp within the past 30 days.” Its tagline: “Real people. Real reviews.®”

I view Yelp.com as one of the many unnecessary, “Web 2.0” websites I will never use that litters the information superhighway like marine snow in the deep ocean. My wife views it as a source of idle entertainment, where she can enjoy reviews that palaver about Jersey Shore-like drama, before even getting to whether a particular restaurant had good food or not. But some businesses have complained, and even filed lawsuits against Yelp,

alleging that Yelp salespeople represent to businesses that Yelp has the power to manipulate Yelp.com business listing pages, and that Yelp will wield that power in favor of the business if it becomes a “Yelp Sponsor” and against the business if it declines to do so.

In other words, some businesses claim that Yelp is the like the internet mafia, asking business owners for protection money to make those bad reviews sleep with the fishes. Is it true?
Continue Reading