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
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College sports is big business.  Student-athletes generate truckloads of cash for their schools, but are prohibited by NCAA rules from sharing in the haul.  In fact, if the student-athlete learns that someone is commercially exploiting his or her name or picture, NCAA rules require the student “to take steps to stop such an activity in order to retain his


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There are so many fun things you can do with celebrities.  In addition to the traditional things like writing books about them, you can also use their catchphrases to make greeting cardsmake movies about them using puppets; or even use claymation television to have them fight each other to the death.  But what about including digital


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So last week, I was on my 173rd consecutive hour of consuming blog articles, news stories, tweets, posts, video interviews, transcripts of interviews, analyses of transcripts of interviews, and opinions on the analyses of transcripts of interviews about Manti Te’o and his imaginary dead girlfriend, when I noticed that something else critical happened in the world of sports.  OMG


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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.


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Q:  What are the legalities of using actors to portray real people in a film — a fictionalized bio-pic in which the main character is purely fiction but some of the other characters are real, both living and deceased?  For example, if Forrest Gumpdid not use actual footage but instead chose to represent those scenes using actors to represent the famous people?

A:  I really liked Forrest Gump when I saw it.  I’m pretty sure I even cried in it.  Now I hate it for some reason.  Maybe it’s just a general backlash against Tom Hanks’ haircut in The Da Vinci Code.  But let’s not get into that.

As to your question…we Americans generally think we all have a 1st Amendment right that gives us the ability to say what we please when we please, which has lead to such enlightening phenomena as Ashton Kutcher’s constant Tweeting (thanks a lot, Founding Fathers).  What is important to understand, however, is that this right of free speech is not absolute.  We are not always free to say what we please, especially when it comes to saying things about other people.

Before answering your question, a word of warning:  whether or not your depiction of a real person in a film can open you up to liability is not a question that has a definite answer.  It requires a fact specific analysis and even then, it may not be entirely clear how strong of a ground you stand on.  Also, you’ve got to remember that we’re dealing with people and people are nuts.  Thus, even if it appears you’ve done everything by the books and you’re legally justified in doing what you’re doing, you could still get sued by someone who didn’t like the way you depicted him or her in a movie.


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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?
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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.
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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.)
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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.
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