Archive | Right of Publicity

OK to Use Lindsay Lohan’s Name in a Song

So holds Lohan v. Perez (E.D.N.Y. Feb. 21, 2013), with regard to Pitbull’s line,

So, I’m toptoein’, to keep flowin’, I got it locked up, like Lindsay Lohan.

The court reasons — quite correctly, I think — that such references are protected under the First Amendment against a “right of publicity” (i.e., misappropriation of another’s name or likeness) claim, and are not covered by New York’s right of publicity statute. For an amicus brief on this issue (in the context of Todd McFarlane’s use of hockey player Tony Twist’s name in the Spawn comic books), see this brief, which goes up to 11; the Missouri Supreme Court decision that the amicus brief was urging the Court to review is, fortunately, an outlier, and decisions such as Lohan v. Perez are the majority view.

Note that the matter might be somewhat different as to use of another’s name on the cover of a work or in the title of a song, see Parks v. LaFace Records (6th Cir. 2003), though even such uses are generally seen as entitled to broad First Amendment protections so long as there’s some “artistic connection” between the use of the name and the rest of the work. [...]

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E = mc^2 + 50

Where did he get that 50, you ask? Well you might. Lawyers ask similar questions when judges making common law or constitutional law draw numerical lines, though sometimes there are plausible answers to such questions. Hebrew University of Jerusalem v. General Motors LLC (C.D. Cal. Oct. 15, 2012) offers an interesting illustration.

Hebrew University stemmed from an ad in People for GM’s 2010 Terrain. “The ad depicted Einstein’s face digitally pasted onto a muscled physique, accompanied by the written message ‘Ideas are sexy too.'” Hebrew University claimed that it had gotten Einstein’s “right of publicity” — the exclusive right to exploit a name or likeness for advertising purposes (and maybe some other purposes) — under Einstein’s will. In an earlier decision, the court concluded that, under New Jersey law, the right of publicity does not die with the person, but could indeed be conveyed by will. (New Jersey law was relevant because that is where Einstein was living at the time of his death.)

But if it doesn’t die with the person, how long does it last? Some states define this by statute, but New Jersey has no such statute; the right of publicity in New Jersey is a common-law, judge-made right (as it originally was in most states). One possibility is that the right might last indefinitely, but the court was unwilling to so hold (partly because very few states so conclude, and because there are good public-domain arguments against such a conclusion). Just how long, though, should the right last?

Life plus 50 years, the court said, so GM wins (since Einstein died in 1955, and the ad ran in 2009). For the reasoning, see here. It’s not as arbitrary a decision as might at first appear, since the judge isn’t just picking a number out of [...]

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Buying Search Engine Placement Triggered by a Competitor’s Name

Habush v. Cannon, 2011 WL 2477236 (June 8), holds that such purchases can’t be enjoined under Wisconsin “right of publicity” law. Plaintiffs, Robert L. Habush and Daniel A. Rottier, are personal injury lawyers and partners in Habush Habush & Rottier. Defendants, William M. Cannon and Patrick O. Dunphy, are plaintiffs’ competitors, and partners in Cannon & Dunphy. “Beginning in 2009, defendant Cannon & Dunphy, S.C. contracted with Google, Yahoo!, and Bing for a sponsored link to their law firm website to appear as the very first result, above organic results, in response to any user’s input of certain search terms. Specifically, it purchased … the right to have the Cannon & Dunphy, S.C. link appear whenever the user would type either the word ‘Habush’ or the word ‘Rottier’ into the search engine.” Plaintiffs sued, asking for an injunction against this behavior, on the theory that it violated the plaintiffs’ “right of publicity” — the right to block (some) uses of plaintiff’s name or likeness for commercial purposes. Wisconsin law allows conduct to be enjoined if it “unreasonably invade[s]” people’s privacy rights, which include the right of publicity.

The trial court held that defendants’ conduct did use plaintiffs’ names for commercial purposes, and that the First Amendment wasn’t applicable. (The Court’s First Amendment argument rested on the view that “the use of a computerized system to sequence search results is not speech,” “commercial or otherwise”; I don’t think that argument works, when plaintiffs’ objection is precisely to the fact that defendants caused Google to communicate certain information to customers.) But the court concluded that the behavior wasn’t “unreasonabl[e],” and was instead permissible competition. This means that, under the Wisconsin statute — though not necessarily under the right of publicity rules of other states — the behavior can’t justify either [...]

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