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!
Tuesday, May 19, 2009
Thursday, April 30, 2009
Sorry I'm So Lame
Lame blogger is lame.
Gumption supplies are at record lows. Pretty much everything feels kinda pointless. Mostly I sit and play computer games and make snarky comments on web sites.
When (if) the weather ever improves I am going to try to get the garage ready to paint. However, it's been pouring down rain for a week and doesn't look to improve soon. That's okay: I am not looking forward to painting anyway, but at least it's a plan.
Photographywise, zip. I have ideas, I write 'em down, and then I think of all the reasons that if I try to do any photography it won't work. I miss my shooting space and my very own studio. No money for that, though. I am getting the credit cards paid down, which is why there's no money - with any luck just a few more months will do it. We had a quarterly company status meeting yesterday and while of course business is down, we are financially secure and moving product, so that's an upper. We also had our first sale of our new product line - which took four years to develop and two years to get regulatory approval for - so that's a very good sign. The potential revenue from this product line beggars the imagination, IF we can get it into the market and the whole world economy doesn't collapse and/or this new flu doesn't turn out to be Captain Trips.
I work for a closely-held company: lately my big daydream involves our main potential competitor (which has 50 times the employees we do) buying out my bosses with so much money that they give every employee $200K as a going-away present. That, and winning the lottery. :)
M More after the jump - click here!
Gumption supplies are at record lows. Pretty much everything feels kinda pointless. Mostly I sit and play computer games and make snarky comments on web sites.
When (if) the weather ever improves I am going to try to get the garage ready to paint. However, it's been pouring down rain for a week and doesn't look to improve soon. That's okay: I am not looking forward to painting anyway, but at least it's a plan.
Photographywise, zip. I have ideas, I write 'em down, and then I think of all the reasons that if I try to do any photography it won't work. I miss my shooting space and my very own studio. No money for that, though. I am getting the credit cards paid down, which is why there's no money - with any luck just a few more months will do it. We had a quarterly company status meeting yesterday and while of course business is down, we are financially secure and moving product, so that's an upper. We also had our first sale of our new product line - which took four years to develop and two years to get regulatory approval for - so that's a very good sign. The potential revenue from this product line beggars the imagination, IF we can get it into the market and the whole world economy doesn't collapse and/or this new flu doesn't turn out to be Captain Trips.
I work for a closely-held company: lately my big daydream involves our main potential competitor (which has 50 times the employees we do) buying out my bosses with so much money that they give every employee $200K as a going-away present. That, and winning the lottery. :)
M More after the jump - click here!
Tuesday, April 14, 2009
All Quiet on The Midwestern Front
I got a new keyboard and mouse. That's about the extent of it.
It's very disconcerting to replace the keyboard and the mouse when you use the computer as much as I do. Especially since they hardly make "traditional" mice anymore and they're all ergonomic modern sculptures - designed for people with smaller hands than mine. I have very long fingers and I can never get comfortable on a curved mouse. Oh, well.
They were a set, and they're wireless, so that's nice - one less cable snaking around on my desk and causing my water glass to tip perilously off-center. Plus, my new keyboard has a display. That's probably the real reason I picked it. I'm hopeless.
M More after the jump - click here!
It's very disconcerting to replace the keyboard and the mouse when you use the computer as much as I do. Especially since they hardly make "traditional" mice anymore and they're all ergonomic modern sculptures - designed for people with smaller hands than mine. I have very long fingers and I can never get comfortable on a curved mouse. Oh, well.
They were a set, and they're wireless, so that's nice - one less cable snaking around on my desk and causing my water glass to tip perilously off-center. Plus, my new keyboard has a display. That's probably the real reason I picked it. I'm hopeless.
M More after the jump - click here!
Monday, March 30, 2009
Saturday, March 28, 2009
Why Not?
Apple came out with an upgrade to the Mac Mini recently. Of particular interest to me was the vastly improved video card, which in my mind was the weakest link in the one I had. It would have been nice to have more than 2GB of RAM, but that video card was a dog.
Well, I had a brilliant idea.
My daughter has a hand-me-down eMac, the last one they made with a CRT. It's noisy, it uses a lot of power, and it takes up half her small desk. To do homework it has to be shoved around to make room. I thought, "Hey, I'll get me a new Mini, and she can have mine, along with an LCD screen, and it'll be quiet, efficient, and take up a lot less room."
As those of you who know me personally are aware, thought and deed are one with me, so I did some pretty elaborate shenanigans to get the maximum Frequent Flyer miles possible and the thing arrived yesterday.
Both "base" models have the same processor, but the more expensive one has more RAM, and Apple advertises it as having more Video RAM, too. However, the way it actually works is that if the machine has more RAM, it allocates more of it to the video card. A little deceptive, you ask me. I bought the absolute cheapest one: the hard drives were the same speed, the other one was just bigger, and I don't care about that. I have 2.5TB of storage in my office. I didn't get RAM from Apple, either, their prices are rapacious. I installed it myself, which is no errand for the inexperienced. If you want to see how it works, look here:
http://www.macminicolo.net/macmini2009.html
Amusingly, that site is run by a co-location company (they maintain computer equipment for people that can assist or replace their on-site equipment in case of demand or disaster) which specializes in co-locating Mac Minis. Look at the picture at the bottom, which is of literally DOZENS of Mac Minis on a big server rack. :)
Hooking the antenna back up was a bit dicey, but otherwise, no sweat. I did the Migration Assistant thing that Macs come with: it had to crank all night, but this morning I was ready to rock. Only two glitches, but both of them required some geek-fu: one of them required the use of "sudo." If you don't know what sudo is and you have this glitch, basically your Mac is going to be set to London time forever. :)
It works great: the video card rocks. Between the new video card and the 4GB of RAM (my old one was maxed out at 2GB) I can comfortably multi-task, Lightroom is much more responsive, and the water in World of Warcraft is SPARKLY.
Tonight I backed up my daughter's computer and set up her new one, which seems to be working although I have to make sure her bookmarks are moved and the Parental Controls are working. Since it's in the living room, I got a nice big monitor and we can watch Internet movies and stuff on it, too.
I'll take the old comp to work, safe-erase it, and donate it to anybody who wants it. Or maybe I'll see if my daughter's school wants it.
As always, I was Amused and a little disturbed by all the open WiFi networks I could see when I set up the computer in the living room. (We didn't want to run a cable so her computer had a WiFi card installed: the Mini has one built-in.) I could see three networks, including one which was still at factory defaults (which means I OWN your network if I want to) and one named "Aretha," which was fun. I didn't link into any of them: our network is SSID-silent and requires a 128-bit encryption key. The FBI could break it in short order but wardrivers won't even see it, especially since this is a target-rich environment for them anyway.
M More after the jump - click here!
Well, I had a brilliant idea.
My daughter has a hand-me-down eMac, the last one they made with a CRT. It's noisy, it uses a lot of power, and it takes up half her small desk. To do homework it has to be shoved around to make room. I thought, "Hey, I'll get me a new Mini, and she can have mine, along with an LCD screen, and it'll be quiet, efficient, and take up a lot less room."
As those of you who know me personally are aware, thought and deed are one with me, so I did some pretty elaborate shenanigans to get the maximum Frequent Flyer miles possible and the thing arrived yesterday.
Both "base" models have the same processor, but the more expensive one has more RAM, and Apple advertises it as having more Video RAM, too. However, the way it actually works is that if the machine has more RAM, it allocates more of it to the video card. A little deceptive, you ask me. I bought the absolute cheapest one: the hard drives were the same speed, the other one was just bigger, and I don't care about that. I have 2.5TB of storage in my office. I didn't get RAM from Apple, either, their prices are rapacious. I installed it myself, which is no errand for the inexperienced. If you want to see how it works, look here:
http://www.macminicolo.net/macmini2009.html
Amusingly, that site is run by a co-location company (they maintain computer equipment for people that can assist or replace their on-site equipment in case of demand or disaster) which specializes in co-locating Mac Minis. Look at the picture at the bottom, which is of literally DOZENS of Mac Minis on a big server rack. :)
Hooking the antenna back up was a bit dicey, but otherwise, no sweat. I did the Migration Assistant thing that Macs come with: it had to crank all night, but this morning I was ready to rock. Only two glitches, but both of them required some geek-fu: one of them required the use of "sudo." If you don't know what sudo is and you have this glitch, basically your Mac is going to be set to London time forever. :)
It works great: the video card rocks. Between the new video card and the 4GB of RAM (my old one was maxed out at 2GB) I can comfortably multi-task, Lightroom is much more responsive, and the water in World of Warcraft is SPARKLY.
Tonight I backed up my daughter's computer and set up her new one, which seems to be working although I have to make sure her bookmarks are moved and the Parental Controls are working. Since it's in the living room, I got a nice big monitor and we can watch Internet movies and stuff on it, too.
I'll take the old comp to work, safe-erase it, and donate it to anybody who wants it. Or maybe I'll see if my daughter's school wants it.
As always, I was Amused and a little disturbed by all the open WiFi networks I could see when I set up the computer in the living room. (We didn't want to run a cable so her computer had a WiFi card installed: the Mini has one built-in.) I could see three networks, including one which was still at factory defaults (which means I OWN your network if I want to) and one named "Aretha," which was fun. I didn't link into any of them: our network is SSID-silent and requires a 128-bit encryption key. The FBI could break it in short order but wardrivers won't even see it, especially since this is a target-rich environment for them anyway.
M More after the jump - click here!
Monday, March 16, 2009
XKCD: Either You Get It, Or You Don't.
XKCD can be a little uneven, although it always delivers the geek. However, today's episode is made of pure iridium-plated WIN.
http://xkcd.com/556/
Friday's comic (http://xkcd.com/555/) is also mostly composed of structural-grade awesome. If that worked I would so totally do that five times a DAY. Soon we would have a serious mirror-haunting demon shortage.
(Small spoiler ahead.)
I don't know why, but the alt text - if you read XKCD, always read the alt text, it's often the best part of the strip - is almost irresistibly hilarious to me. Here it is, if your browser doesn't support alt text:
"The moment their arms spun freely in our air, they were doomed -- for Man has earned his right to hold this planet against all comers, by virtue of occasionally producing someone totally batshit insane."
BWAHAHAHAHAHAHAHAHAHA! I added the italics because that's the really funny part. He'd have put them in if you could put italics in alt text. I know this, if I know nothing else in this world. And that's the beauty of XKCD: where else are you going to get H.G. Wells, triffids, tripods, Al Gore and Cervantes, along with a reference to the totally batshit insane, in one freaking place? I ask you.
Up until now, this has probably been my favorite XKCD comic:
http://xkcd.com/442/
... because I love the "Boom De Yada" song. Many of the panels are sort of in-jokes about XKCD characters, but it's still funny.
M
More after the jump - click here!
http://xkcd.com/556/
Friday's comic (http://xkcd.com/555/) is also mostly composed of structural-grade awesome. If that worked I would so totally do that five times a DAY. Soon we would have a serious mirror-haunting demon shortage.
(Small spoiler ahead.)
I don't know why, but the alt text - if you read XKCD, always read the alt text, it's often the best part of the strip - is almost irresistibly hilarious to me. Here it is, if your browser doesn't support alt text:
"The moment their arms spun freely in our air, they were doomed -- for Man has earned his right to hold this planet against all comers, by virtue of occasionally producing someone totally batshit insane."
BWAHAHAHAHAHAHAHAHAHA! I added the italics because that's the really funny part. He'd have put them in if you could put italics in alt text. I know this, if I know nothing else in this world. And that's the beauty of XKCD: where else are you going to get H.G. Wells, triffids, tripods, Al Gore and Cervantes, along with a reference to the totally batshit insane, in one freaking place? I ask you.
Up until now, this has probably been my favorite XKCD comic:
http://xkcd.com/442/
... because I love the "Boom De Yada" song. Many of the panels are sort of in-jokes about XKCD characters, but it's still funny.
M
More after the jump - click here!
Thursday, March 5, 2009
New Gear is Fun. Yes, Indeedy.
I've actually been pretty good, compared to the way I used to be, about buying new photography gear. Other than the new printer I bought myself for Christmas (which I needed, as the old one was getting very old and the ink was getting hard to find and expensive) I haven't bought anything for quite some time.
Well, the tax refunds came, and I felt it was my patriotic duty to stimulate the economy a little.
I bought one of these:
EF 135mm f/2.8 with Softfocus
I read about this lens in a book Canon gave me for being one of the first purchasers of the original Digital Rebel (the EOS 300D.) I've been lusting after it for years. It's a 135mm prime lens with a max aperture of f2.8, which is faster than most zoom lenses, but not all that fast for a prime. However, it is unique, so far as I know, amongst currently available lenses in that it has a selectable soft-focus mechanism. It uses controlled spherical aberration to soften the image to two selectable degrees (you can also turn it off.)
In English, that means it can make the subject of the image softer without affecting depth of field or plane of focus. That's what that switch labeled "SOFT" is for - 0 for no softening, 1 for first degree softening, 2 for max softening. Example:
This is a totally unretouched self-portrait. Note how it looks like a Gaussian Blur has been applied or something... but the details are still reasonably clear, which would require either high expertise with the Blur filter, or a lot of fiddling with the parameters to get the optimum blur for this particular image, and maybe partially masking out the beard, which would have been very hard to not over-soften while getting the rest of the face right. Alternatively, I could have used a fast prime and opened it way up, but then I'd have had a very narrow depth of field, which also requires a lot of fiddling to get right, or a very high level of expertise, and even if you get it right, produces radical falloff on a dimensional subject if you want a fairly high level of softening.
This lens just did it all for me, with no work on my part whatsoever. (That's a Level 2 softening, exposure f2.8 at 1/200.) It produces soft, dreamy images which don't look overprocessed or out-of-focus. It'll be very, very handy for things like portraits of "ordinary people," who often benefit from a little softening, and should produce great results even in light which is a little harsh. I'm excited about it.
Interestingly, you hardly ever meet a photographer who's ever even heard of this thing. It was one of the very first Canon EF lenses, introduced way back in the day - first year of manufacture was 1987! It has no IS, and no USM. It's almost as loud as the infamous "Angry Hornet" 35mm f2. Its autofocus, for a lens this fast, is kinda slow in lower light, and it's a bit temperamental. However, as is so often the case with fiddly equipment, it seems to call one to rise to its challenge. You just want to play with it.
The autofocus does work in all softness modes, but the plane of focus shifts when softness is altered, which means you can't focus in 0 and then switch to 1 or 2. At large apertures or high softness settings, you have to pretty much trust the autofocus, especially in lower light, which means you have to be familiar with your camera and know when to be confident that the AF is locked on to what you think it is. On a side note, my cameras are always set to "Center AF only," and I lock-and-pan with separate Focus and Exposure locks, unless I am shooting something that moves around a lot, when I might activate more AF points. This helps me be consistent in my focusing technique.
So, like I said, it's a little touchy. But when it hits, it hits. Example:
ISO1600, f2.8@1/100. Softness level 1. The only light was a 40W tungsten bulb above and to camera right, probably at least six feet away. A little noisy, but dreamy and romantic as all-get-out, with very little post (crop, slight color adjustment.)
Also, I got a Kindle2. I'm still not sure why, but somebody gave me one. It's actually kind of cool. Free wireless internet is a Good Thing.
M More after the jump - click here!
Well, the tax refunds came, and I felt it was my patriotic duty to stimulate the economy a little.
I bought one of these:
EF 135mm f/2.8 with SoftfocusI read about this lens in a book Canon gave me for being one of the first purchasers of the original Digital Rebel (the EOS 300D.) I've been lusting after it for years. It's a 135mm prime lens with a max aperture of f2.8, which is faster than most zoom lenses, but not all that fast for a prime. However, it is unique, so far as I know, amongst currently available lenses in that it has a selectable soft-focus mechanism. It uses controlled spherical aberration to soften the image to two selectable degrees (you can also turn it off.)
In English, that means it can make the subject of the image softer without affecting depth of field or plane of focus. That's what that switch labeled "SOFT" is for - 0 for no softening, 1 for first degree softening, 2 for max softening. Example:
This is a totally unretouched self-portrait. Note how it looks like a Gaussian Blur has been applied or something... but the details are still reasonably clear, which would require either high expertise with the Blur filter, or a lot of fiddling with the parameters to get the optimum blur for this particular image, and maybe partially masking out the beard, which would have been very hard to not over-soften while getting the rest of the face right. Alternatively, I could have used a fast prime and opened it way up, but then I'd have had a very narrow depth of field, which also requires a lot of fiddling to get right, or a very high level of expertise, and even if you get it right, produces radical falloff on a dimensional subject if you want a fairly high level of softening.
This lens just did it all for me, with no work on my part whatsoever. (That's a Level 2 softening, exposure f2.8 at 1/200.) It produces soft, dreamy images which don't look overprocessed or out-of-focus. It'll be very, very handy for things like portraits of "ordinary people," who often benefit from a little softening, and should produce great results even in light which is a little harsh. I'm excited about it.
Interestingly, you hardly ever meet a photographer who's ever even heard of this thing. It was one of the very first Canon EF lenses, introduced way back in the day - first year of manufacture was 1987! It has no IS, and no USM. It's almost as loud as the infamous "Angry Hornet" 35mm f2. Its autofocus, for a lens this fast, is kinda slow in lower light, and it's a bit temperamental. However, as is so often the case with fiddly equipment, it seems to call one to rise to its challenge. You just want to play with it.
The autofocus does work in all softness modes, but the plane of focus shifts when softness is altered, which means you can't focus in 0 and then switch to 1 or 2. At large apertures or high softness settings, you have to pretty much trust the autofocus, especially in lower light, which means you have to be familiar with your camera and know when to be confident that the AF is locked on to what you think it is. On a side note, my cameras are always set to "Center AF only," and I lock-and-pan with separate Focus and Exposure locks, unless I am shooting something that moves around a lot, when I might activate more AF points. This helps me be consistent in my focusing technique.
So, like I said, it's a little touchy. But when it hits, it hits. Example:
ISO1600, f2.8@1/100. Softness level 1. The only light was a 40W tungsten bulb above and to camera right, probably at least six feet away. A little noisy, but dreamy and romantic as all-get-out, with very little post (crop, slight color adjustment.)
Also, I got a Kindle2. I'm still not sure why, but somebody gave me one. It's actually kind of cool. Free wireless internet is a Good Thing.
M More after the jump - click here!
Wednesday, March 4, 2009
On Model Psychology
Well-known model Elyse Sewell (her blog is linked on the right) mentioned that she'd had a bit of a skin breakout recently and that she was subconsciously convinced that everyone was repulsed by her monstrous visage. (I'm paraphrasing here.)
Here are a few responses I made, one of which has a funny little story about my photo shoot yesterday.
Response One, to Elyse's original post:
As I'm sure you know, it matters not how lovely the lady, as soon as she gets in her head that she has a problem, it immediately equates to her being actively repulsive. You are one of the most beautiful women in the freaking world, not to mention crazy smart and funny as Hell, and some rough zits convince you you're unfit to mingle with normal, decent folk. I see this with models a lot and it never fails to confusticate me.
The really funny part is, a man can be balding, scraggly-faced, and have a pot-belly peeking out under his "Def Leppard '89" t-shirt and honestly believe he is a good haircut and a nice jacket away from being Brad Pitt. God is an iron.
Response Two, to another poster's comment:
The model I shot yesterday had, for reasons known only to God, eaten an entire bag of carrots the day before. Although she had never had an issue before, she had a food reaction and broke out in blotchy red hives. (Her trachea also started to spasm, but she took some Benadryl and it went away pretty fast.) I suspect the carrots may have slightly contaminated with a mold or something, as I've never heard of anybody almost dying from eating carrots before. On the upside, we discovered that she can now see in total darkness.
In any event, it all appeared to be gone by the time I saw her but she was still semi-convinced that her face would scare small children and dogs and insisted on putting up makeup to run to the freaking store for a last-minute wardrobe addition. (The stylist didn't have anything plain enough, so we went to Target.)
This woman is beautiful, charming, and intelligent (she speaks several languages - some of which are non-Romance languages) as well as being an accomplished model, but for a solid half-hour I swear I saw her looking around to see if people were masking their horror at her appearance. The mind boggles.
M More after the jump - click here!
Here are a few responses I made, one of which has a funny little story about my photo shoot yesterday.
Response One, to Elyse's original post:
As I'm sure you know, it matters not how lovely the lady, as soon as she gets in her head that she has a problem, it immediately equates to her being actively repulsive. You are one of the most beautiful women in the freaking world, not to mention crazy smart and funny as Hell, and some rough zits convince you you're unfit to mingle with normal, decent folk. I see this with models a lot and it never fails to confusticate me.
The really funny part is, a man can be balding, scraggly-faced, and have a pot-belly peeking out under his "Def Leppard '89" t-shirt and honestly believe he is a good haircut and a nice jacket away from being Brad Pitt. God is an iron.
Response Two, to another poster's comment:
The model I shot yesterday had, for reasons known only to God, eaten an entire bag of carrots the day before. Although she had never had an issue before, she had a food reaction and broke out in blotchy red hives. (Her trachea also started to spasm, but she took some Benadryl and it went away pretty fast.) I suspect the carrots may have slightly contaminated with a mold or something, as I've never heard of anybody almost dying from eating carrots before. On the upside, we discovered that she can now see in total darkness.
In any event, it all appeared to be gone by the time I saw her but she was still semi-convinced that her face would scare small children and dogs and insisted on putting up makeup to run to the freaking store for a last-minute wardrobe addition. (The stylist didn't have anything plain enough, so we went to Target.)
This woman is beautiful, charming, and intelligent (she speaks several languages - some of which are non-Romance languages) as well as being an accomplished model, but for a solid half-hour I swear I saw her looking around to see if people were masking their horror at her appearance. The mind boggles.
M More after the jump - click here!
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!
Tuesday, January 27, 2009
Under Reconstruction
I'm making a few changes to the blog.
I'm deleting the fine art stuff for various reasons. I do plan to have a little of it in another location, which I will send to anyone who emails me or asks in a comment.
M More after the jump - click here!
I'm deleting the fine art stuff for various reasons. I do plan to have a little of it in another location, which I will send to anyone who emails me or asks in a comment.
M More after the jump - click here!
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