Woody Allen settles with American Apparel for $5M for using his likeness in an ad without permission:
Woody Allen wins $5 million in lawsuit over his image
Despite the headline's text he did not win the money, it was a settlement on the eve of trial.
Win 1: They blatantly took a still from one of his films and used it in an ad. They claimed Fair Use, in that they added a caption in Hebrew, and that obviously, it was "never meant to sell clothes." However, their logo was quite visible on the billboard they made. A court would have made short work of this argument, I think. Commercial misappropriation is a lot harder to defend than noncommercial, and putting your logo on something, especially when you are known for offbeat ads, kind of gives the lie to the idea that it wasn't commercial usage. Right of Publicity comes out on top.
Win 2: I despise American Apparel, at least I do whenever they are brought to my attention. Their ads are the worst FOTM Terry Richardson/Ryan Mcwhatshisface dreck and their products, at least what I've seen in said ads, are ugly and faux-retro in a lazy mass-market way. What discomfits them refreshes me. Also, they tried to intimidate Allen by putting his ex-wife and his current wife, the victim and subject of a rather scandalous affair, on the proposed witness list. That was pure sleaze, as neither of them could possibly have anything to do with the case.
Tie: I have never liked Woody Allen's movies or much cared for the tiny bit I know about him through unpurposed media input. OTOH, he doesn't seem inclined to put up with people doing him wrong, which I have to admire. So I guess it's okay that he won, although ideally somebody would have hit him with a pie on his way out of the courthouse or something.
M
More after the jump - click here!
Showing posts with label right of publicity. Show all posts
Showing posts with label right of publicity. Show all posts
Tuesday, May 19, 2009
Saturday, February 28, 2009
The Right of Publicity, Again.
I happened to attend an IP law seminar yesterday, where the Copyright update speaker mentioned that this case:
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-3269
JOHN FACENDA, JR., Executor
of The Estate of John Facenda
v.
N.F.L. FILMS, INC.; THE NATIONAL FOOTBALL
LEAGUE;
N.F.L. PROPERTIES, LLC,
was in his opinion one of the ten most important copyright cases of the year. I agree, and although the case was related to a new use for voice recordings, it is squarely on point with the ongoing silliness related to the Right of Publicity that so many photographers and other visual artists do not understand (or do not care to understand.)
Facenda, the legendary "Voice of God" NFL announcer, had recorded many promos for the NFL, which undisputedly owned the copyrights in the promos, both mechanical and performance. (In other words, they owned the words as written, and they owned the recordings as made, under the Copyright Act.) The NFL, however, used the recordings in a video game - which Facenda had never agreed to in any release or license. Facenda's estate sued for royalties, partially on the basis of Pennsylvania's Right of Publicity Act. (42 Pa. Cons. Stat. Ann. § 8316, see also 765 ILCS 1075.) The NFL claimed pre-emption - that because the PA law would infringe on their use of the copyrighted performances, it was pre-empted by the Copyright Act. (The Copyright Act, which is a Constitutionally-mandated Federal law, always trumps state law unless there is an exception.)
The Federal District Court agreed, but the Third Circuit, in a precedential appeal, reversed. They explicitly held that because the Right of Publicity protects a different right, and a different asset, there was no pre-emption. They based this on two factors:
1) If a state right has additional requirements which the Copyright Act does not require to grant protection, there is no pre-emption. PA's law requires commercial value of the likeness to be proven before the right attaches. There was no dispute about the value of Facenda's voice, which was significant. Therefore the pre-emption test failed on that grounds.
2) More importantly for photographers and other visual artists, the Appeals Court found that likeness is not copyrightable, and therefore the right of publicity is not within the scope of copyright. In other words, while I can create innumerable photographs of a face, all of which are potentially copyrighted, I can not copyright a face, no matter how exhaustively I document it. That means that if a state grants me some kind of protection in the appearance of my face, that protection does not conflict with the Copyright Act because the two rights are completely disjoint.
The appeal did not touch on First Amendment grounds, and the court did duly note that under Campbell v. Acuff-Rose Music, (510 U.S. 569, 571–72, 579–80 (1994)) where there is a First Amendment issue, the Copyright act's Fair Use doctrine usually controls, and there is a presumption against the right of publicity. However, there is lots of wiggle room there: IL's law, for instance, specifically exempts works of the fine arts but defines such works very narrowly. Excessive commercial exploitation of likeness, even in an artistic context, is very possibly not pre-empted and IL's law would quite likely withstand Federal judicial review.
This opinion only binds the Third Circuit courts, but it was exhaustively researched and very well-written and I would not hesitate to cite it as persuasive authority before the other Districts. The Right of Publicity is getting stronger every day: bottom line, get a good release, get it vetted by a lawyer who knows what they are doing, and get it signed.
M More after the jump - click here!
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-3269
JOHN FACENDA, JR., Executor
of The Estate of John Facenda
v.
N.F.L. FILMS, INC.; THE NATIONAL FOOTBALL
LEAGUE;
N.F.L. PROPERTIES, LLC,
was in his opinion one of the ten most important copyright cases of the year. I agree, and although the case was related to a new use for voice recordings, it is squarely on point with the ongoing silliness related to the Right of Publicity that so many photographers and other visual artists do not understand (or do not care to understand.)
Facenda, the legendary "Voice of God" NFL announcer, had recorded many promos for the NFL, which undisputedly owned the copyrights in the promos, both mechanical and performance. (In other words, they owned the words as written, and they owned the recordings as made, under the Copyright Act.) The NFL, however, used the recordings in a video game - which Facenda had never agreed to in any release or license. Facenda's estate sued for royalties, partially on the basis of Pennsylvania's Right of Publicity Act. (42 Pa. Cons. Stat. Ann. § 8316, see also 765 ILCS 1075.) The NFL claimed pre-emption - that because the PA law would infringe on their use of the copyrighted performances, it was pre-empted by the Copyright Act. (The Copyright Act, which is a Constitutionally-mandated Federal law, always trumps state law unless there is an exception.)
The Federal District Court agreed, but the Third Circuit, in a precedential appeal, reversed. They explicitly held that because the Right of Publicity protects a different right, and a different asset, there was no pre-emption. They based this on two factors:
1) If a state right has additional requirements which the Copyright Act does not require to grant protection, there is no pre-emption. PA's law requires commercial value of the likeness to be proven before the right attaches. There was no dispute about the value of Facenda's voice, which was significant. Therefore the pre-emption test failed on that grounds.
2) More importantly for photographers and other visual artists, the Appeals Court found that likeness is not copyrightable, and therefore the right of publicity is not within the scope of copyright. In other words, while I can create innumerable photographs of a face, all of which are potentially copyrighted, I can not copyright a face, no matter how exhaustively I document it. That means that if a state grants me some kind of protection in the appearance of my face, that protection does not conflict with the Copyright Act because the two rights are completely disjoint.
The appeal did not touch on First Amendment grounds, and the court did duly note that under Campbell v. Acuff-Rose Music, (510 U.S. 569, 571–72, 579–80 (1994)) where there is a First Amendment issue, the Copyright act's Fair Use doctrine usually controls, and there is a presumption against the right of publicity. However, there is lots of wiggle room there: IL's law, for instance, specifically exempts works of the fine arts but defines such works very narrowly. Excessive commercial exploitation of likeness, even in an artistic context, is very possibly not pre-empted and IL's law would quite likely withstand Federal judicial review.
This opinion only binds the Third Circuit courts, but it was exhaustively researched and very well-written and I would not hesitate to cite it as persuasive authority before the other Districts. The Right of Publicity is getting stronger every day: bottom line, get a good release, get it vetted by a lawyer who knows what they are doing, and get it signed.
M More after the jump - click here!
Monday, November 24, 2008
A Last WindyCon Comment
I forgot to mention it before, but as always when I see a collection of artworks, I saw another thing... thousands and thousands of dollars worth of actionable torts.
I've said it before, I'll say it again. 765 ILCS 1075, the Illinois Right of Publicity Act.
In the Art Show, there were literally dozens of artworks which showed specific recognizable individuals - mostly, of course, actors shown in their well-known acting roles. A picture of William Shatner dressed as Captain Kirk is, at one and the same time, a picture of a copyrighted fictional character and a picture of a real human being. Both of these grant to their owners certain rights under various legal theories. Not only is commercially selling actor-in-character fanart iffy for copyright purposes, but it's clearly a violation of Illinois law, and this show was in Illinois. Every single one of those fanart pieces, on the wall, was a statutory-minimum $1,000.00, plus fees and costs, tortious violation of the IROPA. Walter Koening, who happened to be attending, could have made a quick three grand plus fees and costs, by my count, by going down to the art show and noting a few names.
Now whether Mr. Koening wants to do that is up to him. Since he makes a nice bit of money attending Cons, he might very well feel that it wouldn't be worth the bad publicity, and that is his right. But the point is that he could, and not only is it unethical to make money off other people's property - including their likeness - without their consent, at least in Illinois, it's illegal. I don't understand why people will insist on doing it. Draw your own pictures, take your own photographs. Please.
M More after the jump - click here!
I've said it before, I'll say it again. 765 ILCS 1075, the Illinois Right of Publicity Act.
In the Art Show, there were literally dozens of artworks which showed specific recognizable individuals - mostly, of course, actors shown in their well-known acting roles. A picture of William Shatner dressed as Captain Kirk is, at one and the same time, a picture of a copyrighted fictional character and a picture of a real human being. Both of these grant to their owners certain rights under various legal theories. Not only is commercially selling actor-in-character fanart iffy for copyright purposes, but it's clearly a violation of Illinois law, and this show was in Illinois. Every single one of those fanart pieces, on the wall, was a statutory-minimum $1,000.00, plus fees and costs, tortious violation of the IROPA. Walter Koening, who happened to be attending, could have made a quick three grand plus fees and costs, by my count, by going down to the art show and noting a few names.
Now whether Mr. Koening wants to do that is up to him. Since he makes a nice bit of money attending Cons, he might very well feel that it wouldn't be worth the bad publicity, and that is his right. But the point is that he could, and not only is it unethical to make money off other people's property - including their likeness - without their consent, at least in Illinois, it's illegal. I don't understand why people will insist on doing it. Draw your own pictures, take your own photographs. Please.
M More after the jump - click here!
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