Showing posts with label Lindsay Lohan. Show all posts
Showing posts with label Lindsay Lohan. 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.

Monday, August 26, 2013

Are Cheap Stunts That Invite Negative Attention a Good Form of Branding?

In 1984, newly minted singer Madonna achieved global recognition after the release of her second studio album, Like A Virgin.

It quickly topped the music charts in many countries and became her first number one album.  The title track topped U.S. charts for six consecutive weeks.

The song and music video attracted the attention of conservative organizations who complained that it promoted premarital sex and undermined traditional family values. 

Madonna came under heavy fire when she performed the song at the first MTV Video Music Awards (VMA's) when she appeared on stage atop a giant wedding cake, wearing a wedding dress and white gloves.

Madonna went on, of course, to become one of music's most accomplished and successful business people.  According to Forbes and other publications, "Madonna is a cultural icon, and undoubtedly one of the most successful entertainers of all time."

Nearly three decades later, the MTV VMA's present the same opportunity for stars to form under the intense glare of the public eye.  Last night, former Disney child star Miley Cyrus followed suit, giving a performance that has been widely panned as crude and offensive.

Like Madonna, Cyrus became one of the hottest topics of media discussion following the VMA's, ensuring her relevance for at least some period of time.  Lady Gaga and Nicki Minaj have garnered similar trends after the VMA's, shocking audiences with outrageous public performances that included bloody wheelchairs and satanic imagery.

The recurring branding question that arises:  Are cheap stunts that invite negative public attention a good form of branding?

It has often been repeated that "there is no such thing as bad publicity."

This myth has been addressed by public relations experts, who point out that celebrities whose lives become train wrecks may become famous, but that notoriety can also be short-lived and ultimately could be counterproductive, depending on what the celebrity chooses to do with the sudden notoriety.

According to a Stanford University study, there is actual evidence of this phenomenon.

One factor on whether a brand was helped or hurt by scandal is how familiar a brand or product was in the public's mind before the negative publicity.

Analyzing data that cross-matched book sales against critics’ appraisals, they found that negative reviews of a new book by an established author hurt sales, but for books by relatively unknown authors, negative publicity had the opposite effect, actually increasing sales by ensuring the author's relevance.

In other words, if the public had a strong preconception of an author's talent, that positive impression could be damaged by reading new, negative reviews. However, when an unknown author was deemed worthy of criticism, his perceived relevance made him worthy of further investigation.  Relevance is all that mattered for the new writer.

However, the Stanford researchers also found that sales of Michael Jackson’s records actually rose slightly during periods when the singer was in the news for child molestation or dangling his baby over a balcony, thus suggesting that even negative publicity kept Jackson relevant and in the public's mind, even if his public persona was mired in controversy.

Follow-up studies pointed out that as time passed, the public could not remember the specific negative context in which it heard about someone's behavior, but continued to remember that the person must have been relevant.

Further, Madonna (and others) have been able to forge wider, longer-term influence out of the short-lived relevance.

For example, Howard Stern, who was once public enemy number one for his recurring, flagrant violations of radio broadcasting regulations that became part of FCC lore, later signed on to Sirius XM satellite radio and became a judge on America's Got Talent, earning a whopping salary of $100M per year for his radio show, plus $20M per year from the TV network.

Similarly, Lady Gaga, whose public image was forged from a barrage of controversial public displays, is now regularly placed on lists composed by Forbes, including The World's 100 Most Powerful Women from 2010 to 2013, and was named one of the most influential people in the world by Time magazine.

Other entertainers were not as successful as Howard Stern or Gaga in translating outrage into lasting influence.  Charlie Sheen, for example, has struggled with a lackluster career since his public meltdown, as has Lindsay Lohan.

In conclusion, stars such as Miley Cyrus become (or stay) relevant in the short term for their cheap stunts and antics, but there is no guarantee that their long-term career prospects or influence will improve as a result.  That final outcome apparently depends on what they decide to actually do with their star power.