Gone With The Wind – de Havilland loses legal battle
Image Rights / May 2020

IMAGE RIGHT: The US Supreme Court has decided not accept the law the suit brought by actress Olivia de Havilland against the makers of the FX series “Feud“. “Feud” is a TV dramatisation of the real-life rivalry between actresses Bette Davis and Joan Crawford. In the miniseries, de Havilland (now 102) is played by Catherine Zeta-Jones and is a supporting character. De Havilland’s attorney argued that she is incorrectly portrayed as a hypocrite and gossip who spoke casually and disparagingly of friends and acquaintances such as Davis, Crawford, Frank Sinatra, and her own sister, Joan Fontaine. The Gone With The Wind and Captain Blood star’s suit was initially allowed to proceed by a Los Angeles judge, but a California appellate court reversed that decision in March 2018. The California Supreme Court had previously declined to take up the case prior to the application the U.S. Supreme Court. The 2nd District Court of Appeal said in a unanimous decision that the First Amendment rights of the show’s creators clearly trumped de Havilland’s claims that permission to use her likeness was needed, and she should have been compensated In the appellate court Justice Anne Egerton wrote “Whether a person portrayed in one of these expressive works is a world-renowned…

Male model sues Cardi B over mixtape cover
Artists , Image Rights / December 2017

IMAGE RIGHTS Artistes   Cardi B is reportedly being sued by a male model who allegedly features on the cover of her 2016 mixtape, ‘Gansta Bitch Music Vol 1‘, with the image used suggesting that the model is performing oral sex on the rapper. Although Kevin Brophy’s face cannot be seen in the image, he alleges that the distinctive tattoos on his back confirm his identity. TMZ reports that Brophy did not model for the artwork, and only became aware of the cover when a friend told him that they’d seen him “cunnilinging this rapper called Cardi B”. Brophy said that the image has negatively affected his family wife, he was worried that his wife would think he had been unfaithful to her and his young son saw the image and wanted to know “what Daddy was doing”. Brody says that he has had his tattoo of a tiger fighting a snake for over ten years, but has never met Cardi B or anyone on her team. In a lawsuit, he is suing the rapper and her management for $5 million. You can see the cover and the model here https://theblast.com/cardi-b-mixtape-lawsuit/ and more here https://www.vibe.com/2017/10/cardi-b-five-million-lawsuit-model-mixtape-cover/

Kanye West’s ‘Famous’ music video: publicity rights vs the First Amendment
Artists , Image Rights / July 2016

IMAGE RIGHTS Artistes   By Emma Perot   Kanye West’s music video for “Famous” has sparked outrage for portraying naked celebrities in bed, in the form of life-like wax figures. It is not simply the nudity, but the individuals portrayed, which has led to criticism; Rihanna is seen lying next to former boyfriend and abuser, Chris Brown, alleged serial rapist Bill Cosby is featured, as well as Taylor Swift, Anna Wintour and Amber Rose. Subsequent to the release of the video, Kanye tweeted, “Can somebody sue me already #I’llwait” but later deleted it.   While Kanye waits, this Kat contemplates on whether publicity rights can help those featured (this Kat thinks specifically of Taylor Swift who, lying next to Kanye in the video, is also mentioned in the song lyrics, ““I feel like me and Taylor might still have sex. Why? I made that b**ch famous.”). It is an unusual issue, as publicity rights are usually invoked by celebrities against companies who use them in unauthorised advertising and merchandising, rather than their celebrity peers. Also, there have been few cases which have been brought to protect moral rather than economic interests. An exception is Waits v Frito Lay, 978 F. 2d…

Evoking Audrey Hepburn’s image in an ad is not OK, says Italian court
Artists , Image Rights / March 2015

IMAGE RIGHTS Artists   The IP Kat has noticed a recent trend in advertising, ie the use of the image of icons of the past and Eleonora Roasti has blogged on this.   Perhaps it was Dior and Chanel to start this trend a few years ago by using the image of a young Alain Delon as the face (and body) of Eau Sauvage   [and Marylin Monroe as that of Chanel No. 5, respectively. However these days it seems that everybody is doing it. The question thus becomes: do you need permission to use the image of a celebrity? In those countries which recognise image rights  [not the case of the UK, as the Court of Appeal of England and Wales recently  confirmed in the Rihanna case ] , Italy being one of them   [see Article 10 of the Italian Civil Code] ,  the answer seems pretty straightforward: yes, you do need permission. But what happens when you do not use the image of a celebrity, but rather elements that merely evoke him/her  [see here for an interesting Israeli case] ? The Court of First Instance of Milan recently dealt with these issues in an intriguing case concerning unauthorised use of…

Beastie Boy in court for Monster infringement case
Artists , Copyright , Image Rights / June 2014

COPYRIGHT / IMAGE RIGHTS Artistes, marketing   Fresh from their settlement with Goldieblox – the toy company who used one of their songs without permission – the Beastie Boys’ legal battle with the Monster Energy Drink has finally reached the courts in the US. The rap group sued the energy drink company in August 2012, just a few months after the death of Beastie Boy Adam Yauch, who had included a clause in his will that prohibited the use of his music, image or any other artistic creation in advertising.  The suit reads, “The text accompanying Monster’s internet postings, video and MP3 conveyed to consumers the impression that Beastie Boys permitted the use of their name and intellectual property, and participated in connection with Monster’s promotion of its products and events.” Moreover, it says, the Beastie Boys believe and allege Monster infringed on their copyrights “with a wilful disregard of the harm to” the group and it did it “wilfully, maliciously, and oppressively.” The group’s lawsuit claims that the drinks company used their music in videos and downloads without permission, and is seeking damages of $150,000 for each infringement. The lawsuit adds: “The public was confused into believing that plaintiffs sponsored, endorsed…

Gregg Allman reaches settlement with filmmakers
Contract , Image Rights / June 2014

CONTRACT, IMAGE RIGHTS Artists, film Gregg Allman has settled his recently launched legal action, which was an attempt to halt the production of a film based on his 2012 autobiography. This followed the death of a camera assistant on the movie, Sarah Jones, who died when she was hit by a train during filming. The accident occurred on 20 Feb during the filming of a dream sequence involving a bed being placed on train tracks. The bed was to be passed by two trains, but a third appeared un expectedly, striking Jones, who was killed, while several other members of the crew were injured by flying debris. Investigators have said that the operator of the tracks on which the accident occurred claims that the production company did not have proper permission to film there. A decision is yet to be made on whether or not anyone will be charged over the incident. Following the accident, actor William Hurt, who was playing Allman, quit the film, and the production company, Unclaimed Freight Productions, postponed shooting indefinitely. However, there are now plans to begin filming again in June. In his lawsuit, Allman says that the company has lost its right to make…

Appeal court upholds publicity rights for Hendrix in Washington State
Artists , Image Rights / March 2014

IMAGE RIGHTS Artists   A long running legal spat in the US over the extent of the rights the Jimi Hendrix estate has to prevent others from selling goods using the late guitarist’s likeness has moved forward, with an appeals court overturning a contentious 2011 ruling on the matter. The difficulty for the Estate is that so called ‘publicity rights’, or mage rights, are complex as US protection comes from state law, and some states protect the name and image of dead stars and others do not. The dispute involves the Hendrix Estate,  and HendrixLicensing.com: Hendrix’s brother Leon has an involvement in HendrixLicensing.com, while their adopted sister Janie manages the Estate. Although Hendrix was resident in New York at the time of his death – a state where posthumous publicity rights do not apply – the estate’s company Experience Hendrix has endeavoured to stop HendrixLicensing.com from selling goods in Washington, a state where such rights are on the statute book. In 2011, in what was a surprising decision, a Washington judge ruled that using the state’s publicity right laws in this way was unconstitutional, in that it violated some rules set out by the US Constitution. That ruling limited the…

Rihanna tests image rights in English law
Artists , Image Rights / August 2013

IMAGE RIGHTS Artists, merchandise Rihanna has succeeded in an action against TopShop, after asking the High Court to issue an injunction against the UK retail chain to prevent further sales of T-shirts bearing her likeness. The complaint, against Topshop’s parent company Arcadia Group Brands Limited, was in relation to a line of products which featured a photo of Rihanna, taken by a freelance photographer “without her permission” while on the set of her music video We Found Love in 2011. It was argued that the image used on the T-shirts was “very similar” to pictures included on CD sleeves for her album Talk That Talk, on which the single is featured, and therefore could have duped fans into thinking the products were licensed by the star and as such amounted to passing off, and likely to have damaged her reputation with fans once they discovered it was not a “genuine” piece of merchandise with an “emotional connection to their heroine”. Topshop’s legal team argued “We resist the claim on two main bases; first, this is, in substance and reality, an impermissible attempt by Rihanna to establish an image reproduction right in the UK. There is no such right. “On the contrary, Topshop are…

Bow Wow loses porn star by default
Artists , Copyright , Image Rights / April 2013

COPYRIGHT / IMAGE RIGHTS Artistes   Rapper Bow Wow has been ordered to pay out $80,000 in damages to French porn star Celine ‘Katsuni’ Tran after he used footage of her dancing in a music video without permission. Tran appeared as a dancer in a video for French band Electronic Conspiracy, but Bow Wow then used some of that footage for the pop promo for his track ‘Drank In My Cup’ last year. Recognising that Bow Wow and his label Universal may have sought permission from whoever filmed the original footage, Tran sued for publicity right violations, rather than copyright infringement. In the end, though, that distinction didn’t matter because Bow Wow failed to respond to the lawsuit, so the judge overseeing the case automatically ruled in Tran’s favour, ordering the rapper to pay damages and legal fees totalling $79,346.07.   Posting on Facebook  Bow Wow said: “Yo! That dumb ass pornstar chick who ever she is ain’t getting a dime from us! We ain’t make no video. That video was mashed up by somebody on YouTube and I reposted cuz it was dope. People mash up artist videos all the time online. Everybody looking for a hustle. Then they…

No Doubt settle with Activision in a long-running dispute over the ‘Band Hero’ game.
Artists , Image Rights / November 2012

IMAGE RIGHTS Artistes The recently re-launched No Doubt have settled their case  with Activision of the use of their name and images in Band hero. The iconic band were one of a number of artists who did a deal with the gaming firm to appear in an edition of the various ‘Hero’ games but subsequently complained that users could play any song using their avatar, and not just their own tracks. The gaming giant insisted participating artists knew of this facility, but No Doubt argued the games firm had breached its contract and rights. Various attempts by Activision to have the case dismissed failed, but an out-of-court settlement was reached this week, before the dispute could get a proper court hearing. CMU Daily  http://www.thecmuwebsite.com/article/no-doubt-settle-with-activision/

Bow Wow faces action from angry porn star after video lift
Artists , Image Rights / September 2012

IMAGE RIGHT Artistes   Rapper Bow Wow is being sued by French porn star Celine ‘Katsuni’ Tran over allegations he used footage of her dancing in a music video without permission. Tran says that she appeared as a club dancer in a promo video for French band Electronic Conspiracy, but that Bow Wow and label Universal then sampled that footage for the pop promo for his track ‘Drank In My Cup’ earlier this year, without her permission and that the rapper engages in “intimate activities” with a Katsuni body double. As Tran is not the owner of the copyright to the clip (presumably owned by Electronic Conspiracy or their own label) Tran has sued for publicity rights violations, unfair business practices, false association and unjust enrichment, demanding over $75,000 in damages. http://www.businessinsider.com/french-porn-star-claims-bow-wow-illegally-used-a-clip-of-her-dancing-in-his-new-music-video-2012-8

Beastie Boys fight back against ads
Artists , Copyright , Image Rights , Internet / September 2012

COPYRIGHT / IMAGE RIGHTS Artistes, advertising   CMU Daily reports that the Beastie Boys have filed a lawsuit against Monster Energy Drink, claiming that the company used their music in videos and downloads without permission. The lawsuit reportedly claims that the band’s music was used in a number of online videos – the first of which was posted five days after the death of the band’s Adam Yauch – and also in an MP3 download featuring a 23 minute mix of the band’s music. The use of the band’s name in these promotions too, say the band, incorrectly implied that they had granted permission. It was also revealed t that Yauch’s will prohibited the use of his music, name or likeness in any advertising following his death – although some US commentators have said the hand written provision may not be valid http://www.rollingstone.com/music/news/adam-yauchs-will-prohibits-use-of-his-music-in-ads-20120809 and http://www.forbes.com/sites/deborahljacobs/2012/08/13/part-of-beastie-boy-adam-yauchs-will-banning-use-of-music-in-ads-may-not-be-valid/

Illegally Blonde?
Artists , Image Rights , Trade Mark / July 2012

TRADE MARK / IMAGE RIGHTS Artistes The Hollywood Reporter says that a planned concert featuring a holographic Marilyn Monroe is under legal threat by the deceased icon’s estate. Organisers Digicon Media’s show “Virtual Marilyn” features  the projected blond bombshell singing and interacting alongside live music stars, but has attracted the attention of attorneys Sheppard Mullin who represent the Monroe estate in what might become a developing legal controversy. The holographic performance by dead rapper Tupac Shakur at the Coachella festival in 2012 proved that digital resurrection of deceased celebrities could be an emerging trend and you can find more on the copyright, trade mark, image right  and other legalities of holograms of deceased stars here  http://www.musiclawupdates.com/?p=4856 and here http://www.musiclawupdates.com/?p=4928 http://www.hollywoodreporter.com/thr-esq/marilyn-monroe-estate-hologram-legal-334817

Placebo CD cover a bitter pill to swallow
Artists , Image Rights , Trade Mark / July 2012

TRADE MARKS, IMAGE RIGHTS Artistes An unemployed chef whose boyish face featured on Placebo’s eponymous 1996 debut album is bringing a self funded action against the band claiming the image was used without his consent or permission. The photograph, of David Fox who was then aged twelve, shows the youth in a large red fleece pulling his own cheeks down. It was taken by Mr Fox’s cousin who was a professional photographer. Fox says that once the album was released and became a chart success, he was bullied at school and questioned by teachers. Eventually his mother had to drive him home from school because of the bullying and Fox said he went from being popular to a situation where “Nobody wanted me on their side or anything like that”. He left school before his GCSEs. Now aged 28 was made redundant recently due to the recession. Riverman Management, the band’s managers, said any action should be directed against the band’s label Virgin, who released the album. Former model Robert Christoff initially won a lengthy legal case against Nestle, owner of tasters Choice coffee, having been initially paid  $250 back in 1986 for the photo of the model “posed gazing at…

Hologram Musicians: The Legal Implications

IMAGE RIGHTS / COPYRIGHT/ TRADE MARK Artistes ARTICLE LINK  Yvette Joy Liebesman, an assistant professor at St Louis University Law School, explains the legal implications of using a dead musicians’ image in the wake of the  ‘Tupac’ appearance at the Coachella Festival looking at image rights, trade mark issues and copyright. And Pepsi has done a deal with the Jackson Estate which will see the Michael Jackson’s image used in a new global ad campaign to coincide with a re-release of ‘Bad‘. Pepsi cans will also featured pictures of the singer and options to download some exclusive remixes as part of its ‘Live for Now” campaign . The Fix reports that control of the name and likeness of Kurt Cobain now sits with his daughter Frances Bean Cobain, and not his widow and her estranged mother Courtney Love. According to the website, in 2010 Love took a $2.75 million loan from her daughter’s trust fund, and as part of that transaction the trust gained control of Cobain’s image rights until the loan is repaid. Love also stood down as a director of the company which controlled those rights. Since Frances Bean turned eighteen in 2010 she has had direct control…

Hendrix biopic in the line of fire

TRADE MARK / COPYRIGHT Film, television, music publishing, image rights   The proposed Jimi Hendrix biopic starring Outkast MC Andre 3000 is definitely being made, despite the Hendrix Estate saying that it was not involved in any biopic last week, adding that that would stop any unapproved project from using the legendary guitarist’s music, which the Estate controls The biopic’s director, John Ridley, says he will begin filming his Hendrix movie in Ireland later this month, deriving part of his original screenplay from archived live and interview footage. A statement from Hendrix’s estate – which doesn’t rule out the potential for a Hendrix-scored Hendrix film in the future – says: “Experience Hendrix CEO Janie Hendrix, sister of Jimi Hendrix, and the EH board have not ruled out a ‘biopic’ in the future. Though producing partners would, out of necessity, have to involve the company from the inception of any such film project if it is to include original Jimi Hendrix music or compositions”. http://www.bbc.co.uk/news/entertainment-arts-18032311

Hendrix dispute rumbles on
Image Rights , Trade Mark / March 2011

TRADE MARK / IMAGE RIGHTS Artistes A Las Vegas company co-owned by Leon Hendrix, brother of rock icon Jimi Hendrix, has succeeded in Trade Mark litigation with the company that licenses Hendrix music and trademark – companies controlled by Leon Hendrix’s sister by adoption Janie Hendrix. U.S. District Judge Thomas Zilly said that a 2008 Washington state law that would have provided a “right of publicity” to Experience Hendrix LLC and Authentic Hendrix LLC was unconstitutional. The ruling appears to strengthen the rights of the Las Vegas company — formerly known as HendrixLicensing.com, doing business as Hendrix Artwork and Hendrixartwork.com — to sell Hendrix merchandise. The Jimi Hendrix licensing companies control the Jimi Hendrix music, recordings and artistic properties and have federally-registered trademarks including rights to the phrases “Jimi Hendrix” “The Jimi Hendrix Experience” and certain logos. In 2009, Janie Hendrix’s companies sued Pitsicalis, HendrixLicensing.com, Hendrix Artwork and Hendrixartwork.com in federal court in Seattle, alleging trademark infringement because those companies were using the Hendrix name and selling Hendrix-oriented merchandise, allegedly in a manner “designed to capitalize on the goodwill and source recognition associated with the Hendrix family companies’ marks and rights.” Merchandise includes artwork, posters, t-shirts and home decor items….

Bollywood star threatens legal action over ‘fake’ in advert
Artists , Image Rights / December 2010

IMAGE RIGHTS Artistes Amitabh Bachan, one of Bollywood’s biggest stars, is threatening legal action over a tobacco advert that features a ‘sound alike’ of the actor promoting gutka, a mixture of chewing tobacco, crushed betel nuts and spices. Bachan, who says he does not smoke nor would he promote smoking, says the advert is unethical and paints him in a bad light and that  he will ‘take steps to stop this illegal practice’ saying ‘manufacturers of products be it toothpaste or a car or a mobile spend huge amounts of money and time and management to build its brand value with certain credibility. For it then to be destroyed through unfair and illegal means is not acceptable. In the USA, image rights have been extended to include cover ‘look alikes’ (Onassis v Christian Dior) and even ‘sound alikes’ – the 1988 case of Bette Midler v Ford Motor Co found that hiring a sound alike vocalist to impersonate Bette Midler in an advertisement was “to impersonate her voice’ and thus was ‘ to pirate her identity’ just as Dior’s action in using a Christine Onassis look alike model had infringed her rights. http://www.independent.co.uk/news/world/asia/bollywood-star-blasts-voiceover-fake-for-advert-2129787.html Bette Midler v Ford Motor Co (1988) 849 F 2d 460 Onassis…

Astronaut sues Dido
Artists , Image Rights / November 2010

IMAGE RIGHTS Artistes The astronaut Bruce McCandless is suing Dido and her record label over unauthorised use of a photo of his 1984 space flight for the cover of her 2008 album “Safe Trip Home”. McCandless said he never gave permission for Dido to use the photograph, which shows him “free flying” about 320 feet away from the space shuttle Challenger. The Lawsuit, also naming Getty Images and Sony Music Entertainment, seeks unspecified damages for unauthorised use of McCandless’s persona (although of course being encased in a spacesuit his ‘image’ is somewhat obscured!). Comment from Simon Bradshaw, in the IPKat, explains that There’s clearly no case in copyright law as NASA pictures are, by US Government policy, in the public domain”. Bruce McCandless v. Sony Music Entertainment, 10-07323, U.S. District Court, Central District of California (Los Angeles)

Bieber and Gaga no amused by comics, and sex dolls
Artists , Image Rights , Trade Mark / October 2010

TRADE MARK / IMAGE RIGHTS Artists A comic book version of Justin Bieber’s life has irked the diminutive star. Unlike recently announced bio-pic film and photo-book projects, this output isn’t officially sanctioned. Now the comic’s publisher, Bluewater Productions, is being threatened with legal action by a lawyer representing both Bieber and Lady Gaga, who also had her life turned into a comic strip by the company back in June. According to WENN, lawyer Kenneth Feinswog has served the company with a cease-and-desist letter, threatening to take the matter to court, but the publisher is refusing to cease production, claiming it is well within its rights to produce the books. Bluewater’s Darren G Davis said: “We are 100% within our first amendment rights. We knew our rights on this before we jumped into the biography world. These are 100% biographies on their lives. We reach out to all the celebrities and some choose to work with us and some do not. If they do choose to work with us, we donate ads and money to a non-profit [organisation] of their choice. We offered the same deal to Bieber’s people”. Lady Gaga has also threatened legal action against a sex doll company for…

No Doubt win first round in Band Hero claim
Artists , Image Rights / May 2010

IMAGE RIGHTS Artists The CMU Daily reports that two efforts by gaming giant Activision to defend themselves against No Doubt’s lawsuit in relation to the ‘Band Hero’ game have been knocked back by the US courts. No Doubt had objected to the way their avatars in the pretend-to-play game could be ‘unlocked’ to play songs other than their own and the band argue that the gaming firm didn’t have the rights to use their likenesses in that way. As with when Courtney Love raised similar objections to the fact Kurt Cobain’s likeness could be made to perform non-Nirvana tracks, Activision denied any wrongdoing, claiming the artists knew what they were signing up to. CMU say that it is thought that the agreement between Activision and its artist partners doesn’t actually specifically cover the use of an artist’s avatar in songs other than their own, so this whole area is a bit greyer than the gaming firm originally implied (and indeed a win for No Doubt could expose Activision to claims from other featured artists). Activision’s response to No Doubt’s lawsuit included a claim that their use of Gwen Stefani’s avatar in tracks other than her own was covered by their…

French first lady takes action over bag
Artists , Image Rights / January 2009

IMAGE RIGHTS Artists Carla Bruni-Sarkozy, wife of French President Nicolas Sarkozy has brought a legal action in the St Denis Court in Reunion Island (located in the Indian Ocean) over the use of her image. The case centres on a bag produced by a company called Pardon which featured a ‘posterised’ nude image of Bruni- Sarkozy taken in 1993 for an anti-AIDS campaign when she was 25. The former model claimed damages of 125,000 Euros which it was argued represented the commercial rate which would have been appropriate although the claim made in clear that Bruni-Sarkozy had no wish to market her image in this way. The court agreed that Pardon did “not have, or even claim to have, Ms Carla Bruni’s consent to use her image as part of a publicity campaign.” Awarding Bruni-Sarkozy 40,000 Euros (£37,000), the court also banned all sales of the bag. Pardon’s, which sells fashion clothing and accessories on the Island had already withdrawn the 3 Euro bag. Boss Peter Mertes said after the hearing the damages were “excessive” adding “It’s a heavy price to pay for a silly mistake”. Pardon have said they will appeal. Sarkozy-Bruni (and President Nicolas Sarkozy) had previously filed a lawsuit…

McCain fried? Campaigning senator upsets Paris and Jackson

COPYRIGHT / IMAGE RIGHTS Music publishing, record labels, artists First US presidential candidate Senator John McCain liked Barak Obama’s cultural appeal to Paris Hilton, and Hilton hit back with a rather amusing and somewhat damaging video which mocked the ‘white haired dude’ and rather put McCain on the back foot. Now Jackson Browne’s management have taken action over the use of one of his iconic songs, “Running On Empty” in one of the Senator’s ads. When Browne’s management began receiving emails from people who wondered why the legendary singer and songwriter – an Obama supporter who doesn’t allow his songs to be used in advertisements of any kind – would allow “Running on Empty” to play in a John McCain campaign commercial – they decided to investigate. It turns out Jackson never granted permission for any such use and according to a lawsuit in US District Court in Los Angeles, the Ohio and National Republican Parties and McCain himself are responsible for two illegal actions by infringing Browne’s copyright and creating the false impression that Browne had endorsed John McCain. Browne’s lawyer Larry Iser said “When you’re a senator, or you’re elected president, you take an oath to preserve, protect,…

Governor Schwarzenegger Signs Law Clarifying Posthumous Right of Publicity Statute
Artists , Image Rights , Trade Mark / January 2008

TRADE MARK / IMAGE RIGHTS Artists Governor Arnold Schwarzenegger has signed Senate Bill 771 into law (2007 Cal. Stat. ch 439) amending California’s right of publicity statute. The law now clearly allows a deceased person’s publicity rights to be passed on by will – even if that person died before January 1, 1985. The move was necessary after the existing publicity rights statute passed in 1985 (Civil Code §3344.1) was called into question by two federal court decisions – CMG Worldwide, Inc. v. Milton H. Greene Archives LLC, C.D. Cal., No. CV 05-2200 (summary judgment for defendants granted May 14, 2007) and Shaw Family Archives Ltd. v. CMG Worldwide, Inc., 486 F.Supp.2d 309 (S.D.N.Y., May 2, 2007). The latter case involved a dispute over the ownership of Marilyn Monroe’s right of publicity. Marilyn Monroe bequeathed her residuary estate to her long-time friend and acting coach Lee Strasberg; the question before the courts was whether Monroe’s publicity rights existed when she died in 1962 and could be bequeathed as a property right as California’s right of publicity statute recognizing a posthumous right only became effective January 1, 1985. http://www.loeb.com/news/CaseDetail.aspx?article=493

Bands sue over Rolling Stone magazine cartoon feature
Artists , Image Rights , Trade Mark / January 2008

TRADE MARK / IMAGE RIGHTS Artists The dispute between certain US indie labels and the American music magazine Rolling Stone has escalated after two bands – Xiu Xiu and Fucked Up – launched a class action lawsuit against the magazine’s publisher, Wenner Media, and one of their advertisers, RJ Reynolds who produce Camel cigarettes. The dispute relates to a cartoon feature that appeared in the magazine last month, and which featured cartoons of various indie bands – but the feature was backed by a big advert for Camel cigarettes, and a number of the artists featured in the cartoons claim that readers will have assumed the cigarette brand had sponsored the feature, and that they, the artists, had endorsed that sponsorship. Wenner have denied that the feature was sponsored, and claim it was a coincidence the cartoon feature was printed back to back with the Camel ad. However, despite that a number of indie labels whose artists appeared in the feature last week published an open letter demanding a retraction and apology from the magazine, while political types have been taking aim at Camel owners RJ Reynolds claiming that the association with a music based cartoon feature breaches a cigarette industry code…

Beach Boys lose case to reclaim memorabilia
Image Rights , Trade Mark / May 2007

TRADE MARK / IMAGE RIGHTS Merchandising Former Rock ‘n Roll musician Roy A. Sciacca has won a victory against The Beach Boys’ company, Brother Records, when Judge Manuel L. Real of the United State District Court for the Central District of California turned down a $60 million lawsuit. The lawsuit accused Sciacca of stealing a treasure trove of original Beach Boys lyric sheets, sound recordings, videotapes, photographs and other items from a warehouse in 1994. Sciacca is an avid collector of memorabilia. Following the $1.25 million sale in 2005 John Lennon hand written lyrics, Sciacca contacted auctioneer CooperOwen’s Music Legends to arrange the sale of some of The Beach Boys’ original lyric sheets and other items he had purchased at a warehouse sale in the 1980s. This alerted Brother Records who filed the lawsuit claiming, among other things, copyright, trademark, and right of publicity infringement. Judge Real ruled that there was no evidence to suggest that Roy Sciacca and warehouse owner Allen Gaba had stolen the memorabilia and Sciacca is now free to sell the items. See http://www.sys-con.com/read/359811.htm

Tom Waits reaches settlement over German car
Artists , Image Rights / March 2007

IMAGE RIGHTS Artists Tom Waits has reached a settlement regarding his dispute with German car maker Opel and their advertising agency McCann Erickson. Waits claimed that the car firm had deliberately used a sound-alike on one of their TV ads to imply he had participated in the marketing campaign. The singer sought an injunction to stop the ads and at least $300,000 in damages. The exact nature of the out of court settlement is not know, though Waits has pledged to donate the money he will receive to charity. Confirming they had reached an agreement with the singer, McCann Erickson said yesterday: “We respect Mr Waits, and deeply regret any embarrassment this may have caused”. The settlement comes almost exactly one year after Waits won a similar court case in Spain where Volkswagen had also used a sound a like in a TV ad. Waits, famously critical of artists who take the advertising dollar off big business, said after yesterday’s settlement was announced: “I’m glad to be out of the car sales business once and for all”.

Knievel takes exception to Kanyevel
Artists , Image Rights , Trade Mark / January 2007

TRADE MARK /IMAGE RIGHTS Artists Motorcycle stuntman Evel Knievel is suing Kayne West for trade mark infringement over the latter’s “Evel Kanyevel” character who is featured in the ‘Touch The Sky’ promo video. West’s character is dressed in a jumpsuit similar to that which Knievel is famous for wearing recreates a stunt similar to one performed by Knievel in the 70s. Knievel, who has trade marks over his name and image, argues that the video is “directly counter to Evel Knievel’s long-established public persona, utterly inconsistent with his toy products and appeal to children, and harms the reputation of the Evel Knievel trademark and the Evel Knievel costume.” You cans see what our friends at the IPKat say http://ipkitten.blogspot.com/2006/12/kayne-he-do-it.html And see http://www.washingtonpost.com/wp-dyn/content/article/2006/12/12/AR2006121201219.html

The Last Emperor’s image rights cannot be owned
Artists , Image Rights , Trade Mark / January 2007

TRADE MARK / IMAGE RIGHTS Artists The brother of the last Emperor of China, Aisin Giorro Pu yi, has lost a claim to protect his late brother’s image rights. Jin Youhzi (originally Aisin Giorro Pu Ren, now aged 88) filed the suit in Bejing saying that an official exhibition in the Forbidden City on his brothers life who ruled China from boyhood till his forced abdication in 1911 “violated the image rights of the deceased and hurt Pu Yi’s survivors”. The exhibition was in the former imperial palace of the Ming and Qing dynasties. Jin’s case which asked for the exhibition’s closure, the payment of legal costs and apologies by organizers to be printed in five national newspapers was first rejected on July 14 by the Beijing Dongcheng District People’s Court before the appeal went to Beijing No. 2 Intermediate People’s Court. The appellate court found against the claimant saying that Pu Yi was a public figure whose life was closely connected with China’s history and these rights were in the public domain. http://www.china.org.cn/english/culture/192106.htm http://newsinfo.inquirer.net/breakingnews/world/view_article.php?article_id=37650 http://english.people.com.cn/200612/11/text20061211_331143.html

The Right Image
Artists , Image Rights / January 2007

IMAGE RIGHTS Artists ARTICLE –  A new article on image /personality rights by Ben Challis will be published on Music Law Updates (under Articles) at the end of January 2007. In this article Ben examines current developments in the law in the United Kingdom which could be used to support the concept of a coherent ‘image right’ for celebrities. But Ben asks whether it is time for legislation to govern an area of such of obvious economic importance with s stand alone ‘image right’.

Image Rights: new article
Artists , Image Rights , Trade Mark / December 2005

TRADE MARK Artists This is a link to the article Intellectual Property; Protecting image as trade mark by Dr Peter Groves, Solicitor. Bircham Dyson Bell “ There are no image rights in English law, unlike the position in several other countries.  However well-known a person might be, their image is not something that attracts protection of itself.  They cannot stop photographs being taken, or even published. But the law has come to their assistance in small ways, such as the recognition by the courts that falsely claiming the endorsement of a celebrity may amount to passing-off (Edmund Irvine v TalksportLtd[2002] EWHC 367).  Copyright, libel, malicious falsehood and the Trade Descriptions Act 1968 may also be useful. In addition, the Trade Marks Act 1994 tells us that among the various things that can be registered as trade marks are personal names ….. “ http://www.spr-consilio.com/art11.htm Also see Law Updates November 2005 Trademark – Manchester United’s manager fails to protect his own name on posters

Who Owns Barbie – Copyright Owners and Artists disagree

IMAGE RIGHTS, COPYRIGHT FAIR USE Artists, Record Labels, Film, Television, Internet ARTICLE:  John Petrick in seacoastonline.com An interesting article from the USA on the use of cartoon and other fictional characters in modern art. Is it parody – does it fall under the ‘fair use’ provisions of US law or even under the right to free speech? Or is the use of characters such as Batman & Robin, Micky Mouse and Barbie in any context without permission an infringement of the owner’s intellectual property rights? “In 1994 2 Live Crew were sued for its rewritten version of Roy Orbison’s classic song “Pretty Woman.” The case ultimately went to the U.S. Supreme Court, which found the song was “fair use” in that it was a parody. It’s a seminal case for artists and their lawyers, in that it’s the first to make such distinctions. Also in favor of artists’ rights was a more recent case in which Mattel sued Utah photographer Tom Forsythe for copyright infringement after he created a series of images titled “Food Chain Barbie.” The collection showed Barbie dolls posing in every kind of kitchen appliance from blenders to toaster ovens. Mattel didn’t care what he was trying to…

City employees sue Dr Dre after ‘secretly’ filmed footage appears on DVD

IMAGE RIGHTS/COPYRIGHT/PRIVACY Film & Televison, Artists Lawyers for US rapper Dr Dre (Andre Young) have asked a judge in Flint, Michigan to dismiss a legal action concerning video footage filmed at a concert in July 2000. Three former Detroit City employees were filmed arguing boisterously with some of Dr Dre’s representatives. The trio are suing Dr Dre, Time Warner Inc and Best Buy Co claiming they were unaware that the footage would be used in a documentary released in 2002. The action is centered on a concert at Detroit’s Joe Louis Arena on 6 July 2000 which formed part of Dr Dre’s “Up in Smoke” tour. The footage in question records a conversation between tour organisers and Detroit city officials that took place after Dr Dre was forced to drop two sexually explicit videos from his act. Former Mayoral spokesman Greg Bowens, Paula Bridges and Gary Brown claim a camera and a microphone was used to record the meeting without their knowledge and claim that they did not authorise their subsequent appearance in the 2002 documentary “Detroit Controversy”. But the defendant’s legal team claim that all involved knew that cameras were rolling. Time Warner is being named in the action…

Real Madrid and players sue over unauthorised use of images
Artists , Image Rights / May 2005

IMAGE RIGHTS Artists Spanish giants Real Madrid and several of its top players, including Raul and David Beckham, are taking legal action against online betting firms over what the club claims to be the unauthorised use of its name and players’ images. Five star players – Ronaldo, Beckham, Raul, Zinedine Zidane and Figo – are joining the club in the legal actions. They are taking action against Ladbrokes, William Hill, Sportingbet, Sporting Exchange, BAW International of Gibraltar and Malta-based Mr.Bookmaker. Legal steps had already been launched in France, Belgium and Germany against these companies. The club wants the companies to stop using the images and to “repair the harm caused”.” It is alleged that the companies used the name of Real Madrid and the majority of its players without authorisation and that they often used photographs and drawings of these footballers wearing the kit and badge of Real Madrid. See: http://www.timesofmalta.com/core/article.php?id=179091

Rosa Parks, OutKast and Sony-BMG settle

TRADE MARK/IMAGE RIGHTS Artists Sony BMG and Rosa Parks, who became a symbol for the U.S. civil rights movement when she refused to yield her seat on a segregated bus in 1955, settled her lawsuit over the use of her name in an OutKast song title. The settlement included an agreement that a tribute CD featuring OutKast would be produced later this year by Sony BMG to honour the 50th anniversary of Parks’ arrest. The parties will also produce a television broadcast tribute to Parks, he said. Parks, 92, had claimed that the song “Rosa Parks” on a 1998 OutKast album amounted to false advertising under U.S. trademark law and intruded on her rights. OutKast and their label countered that the title was constitutionally protected free speech because it was related to the song’s lyric of “everybody move to the back of the bus.” The Supreme Court in December 2003 rejected this argument and upheld a federal appeals court decision that permitted Parks to pursue her lawsuit. See: http://www.nytimes.com/2005/04/15/business/media/15settle.html

Elizabeth Jagger wins right to protect intimate moments in a nightclub
Artists , Image Rights , Privacy / April 2005

PRIVACY/IMAGE RIGHTS Artists Elizabeth Jagger was entitled to a “legitimate expectation of privacy” Mr Justice Bell has ruled in the High Court, awarding the model an injunction to prevent images of Jagger and boyfriend Callum best taken from a security camera being published. Three of the pictures had already been published in a Sunday tabloid. The pair had been involved in what The Times described as ‘heavy petting’. Mr Justice Bell said that although the claimant may be guilty of misconduct in the most general sense e was not guilty of moral turpitude to prevent her seeking recourse through the courts. Jagger claimed breach of copyright, her rights to data protection, her rights to respect for her private life under article 8 of the European Convention of Human Rights (Human Rights Act 1998) and at common law. Using wording which stem from the new ‘privacy laws’ resulting from the Human Rights Act, the Judge held that Jagger had a right to privacy and that he could see no public interest in the in further dissemination of the images which would only humiliate the claimant for the “prurient interest of others”. The balance between the article 8 right to privacy and the article…

Unauthorised use of model’s photograph results in massive damages against Nestlé
Artists , Image Rights , Trade Mark / March 2005

TRADEMARK/IMAGE RIGHTS Artists In 1986 Russell Christoff (58), now a nursery school teacher but then a male model, sat for a two hour session for Nestlé for which he was paid $250 (about £130). Over fifteen years later in 2002 he discovered that, unbeknown to him, his face had been adorning Nestlé’s ‘Tasters Choice’ for over a decade. Having checked his original contract Mr Christoff found that as a minimum payment he was due $2,000 if his image was used. But this right, coupled with a Californian state law which is designed to protect celebrities image rights, led to a claim for over $8.6 million which eventually resulted in a Jury in the Los Angeles County Superior Court awarding damages of $15.6 million. This was based on a fee payment of $330,000 for use of his image plus 5% of the profits from the Tasters Choice brand. His face had been used on labels in the US, Israel, Japan, Kuwait and South Korea and had even been used as a screen saver. Nestlé will appeal the award. Source: The Times, 2 February 2005

The Concept of Image Rights in the UK Develops as David Bedford Benefits from Ofcom Ruling
Artists , Image Rights / March 2004

IMAGE RIGHTS Artists David Bedford, the former 10,000 metre world record holder has benefited from a ruling by the UK media regulator, Ofcom, that his image (long hair, drooping moustache, red socks and striped singlet) were used without his permission by the owners of the 118118 phone director, The Number. The number have invested million in advertising their service which is now the UK’s most popular director of enquiries. Ofcom is not in anyway a court, and this is not a judicial decision, but the regulator found that the high profile adverts featured a caricature of Mr. Bedford. Advertising rules state that no living person may be portrayed, caricatured or referred to in advertisements without their permission. Mr. Bedford now plans to take legal action against The Number for damages of ,000. Aberdeen Amateur Athletics Club whose club kit features a two red striped singlet identical to that used in the advertisement have already reached an out of court settlement with the Number. COMMENT : Ofcom’s decision has re-opened the debate on image rights in the United Kingdom. Even as early asTolley v Fry (1931)[AC 333 HL] a amateur golfer, Tolley, was held to have a cause of action against chocolate manufacturers…

England Rugby Star Considers Protecting His ‘Kicking’ Ritual
Artists , Image Rights , Trade Mark / January 2004

TRADE MARK, IMAGE RIGHTS Artists Jonny Wilkinson, hero of England’s triumph in the 2004 Rugby World Cup, is considering using trade mark law or patent law to protect his distinctive ‘cradle’ ritual which he uses to focus his mind before taking penalty or conversion kicks in the game. The Scottish football team, Celtic FC, has succeeded in registering still images (a graphic representation) of their distinctive pre-match on field ‘huddles’ as a trademark, and a number of sports stars have had their photographic images registered as trademarks. But registration of the actual movement sequence itself would be a new departure in UK trademark law. Movement marks themselves are not unknown and a number of companies have registered moving images but these have been in a graphic form (for example, a rotating company logo). At the most basic level, for trade mark registration to succeed the ‘movement mark’ would have to be capable of being represented graphically and of distinguishing the goods of one person from that of another. However, it is possible that a complicated and original sequence of moves could have protection in copyright law just as a choreographed sequence of steps would be – as a dramatic copyright. Alternatively, it…

Zeta Jones and Douglas Win Limited Damages
Artists , Consumers , Image Rights , Privacy / December 2003

PRIVACY, IMAGE RIGHTS, COMMERCIAL CONFIDENCE Artists The photographs snatched by papparatzi at Catherine Zeta-Jones and Michael Douglas’ wedding have cost Hello! Magazine more than £1 million in damages. In the High Court, Mr Justice Lindsay awarded a total of £14,600 damages to the couple and also awarded OK! Magazine £1,033,156 in damages for commercial damage to its exclusive coverage of the New York wedding in November 2000. See Law Updates May 2003 COMMENT : The judgement in this case sees only limited damages awarded to the couple : a nominal £50 to each of the claimants for data protection infringements and £3,750 each for the ‘distress’. The substantial award of damages is to OK magazine who lost their right to exclusive pictures from the celebrity wedding and Mr Justice Lindsey accepted that the magazine had lost substantial sales. To take this further, this ‘commercial confidence’ must be based on the licence of certain rights Catherine Zeta Jones and Michael Douglas has – and it is suggested that this is not only to the ‘event’ itself, the wedding, but to their own image. Most recently F1 driver Eddie Irving won a case against TalkRadio after they used the driver’s image in an…

Assertion of character rights in UK advertisement
Artists , Image Rights / November 2003

CHARACTER (IMAGE) RIGHTS Artists It seems that one of the UK most successful advertisements ever will feature in a High Court action. The advert features two ‘twin’ runners with wild hair and handlebar moustaches in 70s style striped singlets and cut-away shorts running across the country promoting the new directory enquiries number 118118 owned by US firm The Number. 118118 has captured 50% of the directory market from British Telecommunications. The runners have sparked of huge popular support and widespread ‘cult’ appreciation. But David Bedford, the British 10,000 world record holder in 1973, claims the runners are based on his image. Mr Bedford’s solicitors have written to The Number claiming the advertising is based on Mr Bedford’s image, in particular his 1973 image, which featured wild hair, moustache, striped singlet and cut away shorts. The Number have rejected the claim as ‘ridiculous’ and claim the 118118 runner image is an ‘aggregate’ on 70’s runners and that most runners of that era sported wild hair and facial hair. They say that the only runner actually looked at was a friend of Mr Bedford’s from the 70s, Steve Prefontaine who died in a car crash in 1975. Mr Bedford, 53, is the…


IMAGE RIGHTS Artists, Record Labels Director Spike Lee issued proceedings against US media giant Viacom over plans to rename a cable channel Spike TV. Viacom had said that it wanted to make the name change in order to attract more male viewers. Lee’s application included a request for injunctive relief against Viacom’s use of the name Spike, saying he had never given his consent for it to be used. Lee – real name Shelton Jackson – had included affidavits from actors Ed Norton and Ossie Davis and former senator Bill Bradley. The signatories said they had thought of Lee when they heard about Spike TV and believed he had become affiliated with the network. Viacom argued that the word ‘spike’ was a common and ordinary word which they were free to use. Viacom, which also owns broadcasters such as CBS, MTV, and VH1 had been directed by the court to explain why it should not be barred from using the name. In a surprise decision the 5 member Manhatten Court held that Viacom did have a case to answer and ruled that Viacom could not use the name until a further hearing in September 2003. Acting Justice Tolub held that…