Showing posts with label First Amendment. Show all posts
Showing posts with label First Amendment. Show all posts

Thursday, July 17, 2014

Have California's Likeness Laws Gone Off the Deep End?

An alleged misappropriation of Lohan's likeness
As recently noted by Professor Marc Edelman on Forbes, the civil lawsuit filed by Lindsay Lohan against RockStar games for alleged misappropriation of likeness in Grand Theft Auto V is being watched closely for its impact on the ability of video game makers to utilize public figures' images without offering them compensation.  

NFL players and their financial planners are certainly watching that lawsuit closely, as EA and other video game makers routinely distribute sports-themed games that utilize players' attributes.

Now, the latest lawsuit against Activision for its alleged unauthorized use of Manuel Noriega's likeness in Call of Duty: Black Ops reveals just how warped California's right of publicity laws are becoming, unless they are reined in.

In the 2006 case of Kirby v. Sega, the California Court of Appeals had held that the First Amendment protected Sega's incorporation of certain elements of singer Kierin Kirby into the character Ulala.

According to that court, Sega's use was transformative and thus protected. In contrast, as noted by Professor Edelman, is the same California Appeals Court's 2011 decision in No Doubt v. Activision, because that game supposedly involved "computer-generated recreations of real band members."

The distinction between the cases is not clear.

However, what is clear from the Lohan and Noriega cases is that, unless seriously circumscribed, such lawsuits will proliferate and threaten one of the fastest growing areas of cultural expression: video games.

Without a bright line rule that celebrities and video game makers can understand and apply evenly across cases, every aggrieved "celebrity" such as Noriega and Lohan can (and undoubtedly will) flock to California, and find an aggressive lawyer looking to cash in big on the developing legal theory by filing such complaints against software developers and video game makers.

Such cases are easy to file and difficult to dismiss.  Both the prior Sega and Activision cases involved years of litigation and hundreds of thousands of dollars in legal fees.

Noriega Sues in L.A., Demanding "Lost Profits" from Likeness in Game

Noriega's Mugshot
In a newly-filed case in Los Angeles that is likely to even further tarnish the reputation of plaintiffs' lawyers (and possibly intellectual property lawyers generally), ousted Panamanian dictator Manuel Noriega has filed a civil lawsuit against Activision, alleging that his likeness was used without his permission in the recent video game Call of Duty II: Black Ops.

Time magazine reports that Noriega formally accuses the videogame's makers of "wrongly depict[ing]" him as a "kidnapper, murderer and enemy of the state."

In the 1989 invasion of Panama by the United States, Noriega was removed from power, captured, detained as a prisoner of war, and flown to the United States. Noriega was later tried on eight counts of drug trafficking, racketeering, and money laundering in violation of U.S. federal law in April 1992.

Noriega's U.S. prison sentence ended in September 2007; pending the outcome of extradition requests by both Panama and France, for convictions in absentia for murder in 1995 and money laundering in 1999.

France granted the extradition request in April 2010. He arrived in Paris on April 27, 2010, and after a re-trial as a condition of the extradition, he was found guilty again and sentenced to seven years in jail in July 2010.   

A conditional release was granted on September 23, 2011, for Noriega to be extradited to serve 20 years in Panama.  He arrived in Panama on December 11, 2011 where he is currently in prison.

Therefore, even assuming, for argument's sake, that Activision used Noriega's likeness in the game without offering him compensation, it is difficult to understand how Noriega could ever have lawfully received a penny.

Under both state and U.S. federal law (18 U.S.C. §§ 3681 and 3682), convicted criminals have difficulty keeping assets attributable to their crimes. While the U.S. Supreme Court has limited that principle in Simon and Schuster, Inc. v. Members of New York State Crime Victims Board, 502 U.S. 105 (1991), victim restitution and forfeiture orders are still permissible.

Further, it borders on the absurd to ponder how a dictator who was repeatedly convicted and sentenced under several different nations' laws can have a "reputation" that could be further harmed by a video game.

Thursday, February 13, 2014

Federal Appeals Court Prohibits "Pro-Life" License Plates

Most states offer specialty automobile license plates that reflect a variety of special interests and political viewpoints. The state typically charges a nominal sum for a specialty plate, and may contribute a percentage of the proceeds to a non-profit organization dedicated to that particular cause.

For example, Virginia offers a license plate that says:  "Friends of Tibet." According to the Department of Motor Vehicles, as a revenue-sharing plate, after the sale of the first 1,000 qualifying plates, $15 of the $25 fee is transferred to the Conservancy for Tibetan Art and Culture to support its programs in Virginia.  Virginia also offers a "Friends of Coal" plate, with funds going to the Virginia Department of Mines, Minerals and Energy to support its programs.

Other states offer plates with a wide variety of viewpoints and diverse causes represented. Florida offers a John Lennon "IMAGINE" logo license plate, supporting efforts to reduce hunger. Others range from anti-terrorism and anti-drug messages to those supporting the National Rifle Association, pro-environmental conservation efforts and many others.

However, the American Civil Liberties Union filed a federal lawsuit against the State of North Carolina, which had approved a license plate in 2011 depicting children on it, along with the phrase "CHOOSE LIFE." Each plate would cost $25, with $15 of that going to the Carolina Pregnancy Care Fellowship, an association of nonprofit pregnancy counseling centers.

The North Carolina legislature considered, but rejected, license plates that would have said "TRUST WOMEN" and "RESPECT CHOICE."

The ACLU's argument was that, by choosing a "pro-life" viewpoint without offering equal time to an "opposing" viewpoint, the government ran afoul of the First Amendment.

And yesterday, the United States Court of Appeals for the Fourth Circuit agreed with the ACLU. North Carolina has been banned from manufacturing the plates.

Sunday, February 9, 2014

Is "Dumb Starbucks" Free Speech or Just a Dumb Ploy Inviting a Lawsuit?

A new coffee shop has opened in Los Feliz, Los Angeles, titling itself "Dumb Starbucks."  The mock coffee shop utilizes a virtually identical logo to Starbucks' logo on all its products and signage, but places the word "Dumb" before everything.

According to news reports, the owners are claiming that their coffee shop is some kind of "pop art" installation intended to mock the massive Starbucks corporation.  They apparently claim that they are shielded from liability for trademark infringement or dilution by the First Amendment, and that their lawyers are fully in control of the situation.

Notably, the news reports also claim that their coffee is not for sale, but is handed out free of charge, which would tend be garner some sympathy for the argument that the whole excursion is a non-commercial artistic endeavor. However, the "FAQ" disclosed by the owners seems to suggest that the coffee is very much for sale.  It states, in relevant part:

"Although we are a fully functioning coffee shop, for legal reasons Dumb Starbucks needs to be categorized as a work of parody art. So, in the eyes of the law, our "coffee shop" is actually an art gallery and the "coffee" you're buying is actually the art. But that's for our lawyers to worry about. All you need to do is enjoy our delicious coffee!"

But what does that matter?  Under the federal Lanham Act, there is a requirement that the unauthorized use be "in commerce" to be considered an infringement. The Federal Trademark Dilution Act does not expressly contain such a commercial use requirement, but it would certainly be relevant to a court's consideration if the whole stunt has no commercial element.

Rather, here, it would appear the entire endeavor is a publicity stunt essentially inviting the Starbucks' chain to file a lawsuit. Even if Starbucks won, it might lose in the court of public opinion, for looking like it has no sense of humor. So the owners may be taking an expensive gamble.

That being said, Starbucks Corporation is inevitably going to be forced to sue this particular coffee shop, and the odds are that it will likely prevail in shutting it down in very short order. Perhaps that is the reason that news reports that there is a several hour wait to enter the shop.

Sunday, November 24, 2013

Toy Company Sues Beastie Boys, Claiming Parody Protects Its Viral Ad

Screenshot from GoldieBlox's website
A progressively-themed company that makes and sells toys that will supposedly help young girls overcome gender stereotypes has become embroiled in a high-profile copyright litigation with the Beastie Boys.  Toy company GoldieBlox says on its website: 

"In a world where men largely outnumber women in science, technology, engineering and math...and girls lose interest in these subjects as early as age 8, GoldieBlox is determined to change the equation.  Construction toys develop an early interest in these subjects, but for over a hundred years, they've been considered "boys' toys".  By designing a construction toy from the female perspective, we aim to disrupt the pink aisle and inspire the future generation of female engineers."

In its recent viral video commercial touting the ingenuity of young girls who build an elaborate contraption that can change the television channel, GoldieBlox intentionally utilized the music and parodied the lyrics from the Beastie Boys' song Girls.

The Beastie Boys were apparently not pleased with GoldieBlox's unauthorized use and sent a cease and desist letter, alleging copyright infringement and demanding that GoldieBlox end its campaign.

Rather than complying with the demands, GoldieBlox countered by filing a Declaratory Judgment Complaint against the Beastie Boys in Los Angeles federal district court, asserting that its usage was parody and fully protected by the First Amendment.

Given the Beastie Boys' recent unhappy experience with copyright litigation, one suspects that GoldieBlox's executives were well aware that this dispute would erupt, and intentionally developed a strategy inducing litigation to fuel its viral campaign to garner "free" publicity.  Whether the gambit works or not is yet to be seen.

Legally, the controlling analysis here is the Supreme Court's decision in 1994 in Campbell v. Acuff-Rose Music, Inc., interpreting the "fair use" defense to musical parodies used in a commercial context.

In that case, the members of the rap music group 2 Live Crew had created a parody of Roy Orbison's iconic "Pretty Woman," called "Big Hairy Woman."  Roy Orbison's estate sued the rap group, alleging that the group's use was not fair or protected free speech, but was an unprotected commercial use.

After years of litigation, the Supreme Court ultimately held that 2 Live Crew's commercial parody may very well be a fair use within the meaning of § 107 of the U.S. Copyright Act, which states:

"In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work."

On appeal, the Supreme Court found the aforementioned four factors must each be applied to every situation on a case by case basis, and that the fact that the parody was used in a commercial context alone was not dispositive.

When looking at the purpose and character of 2 Live Crew's use, the Supreme Court found that the more transformative the new work, the less will be the significance of the other three factors.  The court found that, in any event, a work's commercial nature is only one element of the first factor enquiry into its purpose and character.

Justice Souter, writing for the majority of the Court, then moved onto the second § 107 factor, "the nature of the copyrighted work", finding it has little merit in resolving this and other parody cases, since the artistic value of parodies is often found in their ability to invariably copy popular works of the past.

The Court found the third factor integral to the analysis, finding that the Ninth Sixth Circuit Court of Appeals had erred in holding that, as a matter of law, 2 Live Crew copied "excessively" from the Orbison original.

Justice Souter reasoned that the "amount and substantiality" of the portion used by 2 Live Crew was reasonable in relation to the band's purpose in creating a parody of "Pretty Woman".

The majority reasoned "even if 2 Live Crew's copying of the original's first line of lyrics and characteristic opening bass riff may be said to go to the original's 'heart,' that heart is what most readily conjures up the song for parody, and it is the heart at which parody takes aim." 

The Supreme Court then looked to the new work as a whole, finding that 2 Live Crew thereafter departed markedly from the Orbison lyrics, producing otherwise distinctive music.

Looking at the final factor, the Supreme Court found that the Court of Appeals erred in finding a presumption or inference of market harm.

Parodies in general, the Court said, will rarely substitute for the original work, since the two works serve different market functions.

While Acuff-Rose found evidence of a potential "derivative" rap market in the very fact that 2 Live Crew recorded a rap parody of "Oh, Pretty Woman" and another rap group sought a license to record a rap derivative, the Supreme Court found no evidence that a potential rap market was harmed in any way by 2 Live Crew's parodic rap version.

In fact, the Supreme Court found that it was unlikely that any artist would find parody a lucrative derivative market, noting that artists "ask for criticism, but only want praise."

Applying this same analysis in the newly-filed Beastie Boys case, the courts will need to evaluate each of these same factors to determine if Goldiblox's usage was appropriate or improper.

In the meantime, the GoldieBlox commercial has gone viral, and received nearly 8 million views.

Thursday, September 5, 2013

"Stop Islamization" Trademark Refused: Applicants Decry Political Correctness in Appeal

Image on AFDI Website
A U.S. federal trademark application for an anti-sharia law campaign known as "STOP ISLAMIZATION OF AMERICA" was filed by a group called the American Freedom Defense Initiative (AFDI), a pro-Israel group founded by controversial bloggers/commentators Robert Spencer and Pamela Geller.

The AFDI had been behind a grassroots movement that sought to stop the building of a mosque in lower Manhattan, near the Ground Zero World Trade Center site, claiming that the act would offend 9/11 victims' families.

Critics such as the Southern Poverty Law Center and the Anti-Defamation League have accused the AFDI of being an anti-Muslim hate group, alleging that it promotes a conspiratorial anti-Muslim agenda under the guise of fighting radical Islam" and "seeks to rouse public fear by consistently villifying the Islamic faith and asserting the existence of an Islamic conspiracy to destroy 'American' values." 

The Trademark Office refused the group's application for a trademark on the basis that it "consists of or includes matter which may disparage or bring into contempt or disrepute persons, institutions, beliefs or national symbols."

The Trademark Office ruled that it must apply a two factor legal test, asking: (1) What is the likely meaning of the matter in question; and (2) is that meaning referring to identifiable persons, institutions, beliefs or national symbols, and whether that meaning is disparaging to a substantial composite of the referenced group.

The Trademark Examiner concluded that, applying this test, the likely meaning of ISLAMIZATION refers to the act of converting to Islam, and that the proposed mark effectively disparages Muslims by implying that conformity to Islam is something that needs to be stopped.

The Trademark Office cited several cases supposedly supporting its conclusion.

However, on further examination, the cases that the Examiner cited were not necessarily relevant or helpful to its case, such as when the Trademark Office found THE MEMPHIS MAFIA for entertainment services not to be matter that disparages Italian-Americans or bring them into contempt or disrepute.

The group appealed the Examiner's final refusal to the Trademark Trial and Appeal Board (TTAB), which affirmed the rejection.

Now, the group has appealed this decision to the United States Court of Appeals for the Federal Circuit, which hears appeals from final Trademark Office refusals to register trademarks.

In the appeal brief, the AFDI's lawyer argues that:

"Appellants [Geller and Spencer] are sympathetic to the USPTO’s politically correct sensitivities enticing it to protect Muslims and indeed Islam itself from even the slightest hint of disparagement in the form of public criticism, especially in the post-9/11 age with global terrorism conducted daily in the name of Islam and the Arab Spring featuring the Muslim Brotherhood’s Islamisation program for Egypt and elsewhere melting into murder and mayhem.

The problem with these sensitivities as applied to the denial of Appellants’ Mark is that the USPTO’s beef is not with Appellants or their Mark, but rather with terrorists who claim to speak in the name of all of Islam and all Muslims.  Appellants’ Mark does not.  

One of the AFDI's NYC MTA Advertisements
'Stop the Islamisation of America' has a specific meaning that Muslims and non-Muslims in America and indeed throughout the West embrace if they treasure liberty and religious freedom for all.  In a zeal to take on the role of parens patriae and to protect Muslims from every insult, the USPTO and the TTAB have both ignored the factual record and have simply assumed meanings and understandings of the terms of the Mark that have no factual or evidentiary basis.  There is no substantial evidence to support the TTAB’s Decision or the USPTO’s denial of the Mark."

The USPTO has yet to file its response.

The AFDI has seen its fair share of federal litigation and previously triumphed. For example, in a federal lawsuit that it filed against the New York Metropolitan Transit Authority (MTA), the group succeeded in forcing the MTA to carry its advertisements on the sides of New York City buses and in the subways.

The MTA had rejected the group's advertisements, purportedly on the basis that they "demeaned" Muslims.