Covering Your Ads : Advertising & Marketing Lawyer & Attorney : Sheppard Mullin Law Firm : Entertainment, Sports, Publicity

The California Supreme Court will hear oral argument on June 3 in an important “right of publicity” case, Christoff v. Nestle USA Inc. Issues include whether the single publication rule applicable to mass communication-based torts applies to right of publicity claims; whether use of another’s likeness on a product label is a “publication” for purposes of the rule; whether its continuing use on product labels and in various product advertisements constitutes a “republication” for each use giving rise to new causes of action and whether the discovery rule applies to right of publicity claims.

The following article by Guylyn Cummins was originally published in the Los Angeles Daily Journal.  To read the article please click here, or visit the Los Angeles Daily Journal website.

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On Feb. 20, 2009 the 9th Circuit Court of Appeals struck down a California law banning the sale or rental of “violent video games” to minors and requiring such games to be labeled “18” (the legal age for adults). While this decision may surprise some California lawmakers and parents, its holding is fully consistent with substantial U.S. Supreme Court precedent entitling minors to a signifi cant measure of First Amendment protection, and leaving parents with the duty to supervise “appropriate” content.
 

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In deciding whether the unauthorized use of a third party’s name, voice, likeness or persona (collectively, “Image”) violates such third party’s publicity rights, the first level of inquiry is whether the use is properly categorized as a “commercial” or a “non-commercial” use.  If an Image is used without permission in a non-commercial or “newsworthy” context, such use is generally protected so long as the Image used is reasonably related to the aspect of the use that makes it newsworthy, and so long as less than the Image owner’s “entire act” is used.

Distinguishing between commercial and non-commercial uses is a context-specific inquiry, and describing the precedent on that issue is beyond the scope of this article.  But where the underlying use is concededly non-commercial, such that permission does not need to be obtained from the person whose Image is depicted, this Adbriefs blog post briefly addresses whether the Image can also be used to advertise or promote the underlying use without giving rise to a valid right of publicity claim by the person whose Image is depicted.
 

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"Seventy years after Eric Knight first penned his tale of the devoted Lassie who struggled to come home, at least some of the fruits of his labors will benefit his daughter." So said the U.S. Court of Appeals for the Ninth Circuit in Classic Media Inc. v. Mewborn on July 11, 2008, when it held that Eric Knight’s daughter had duly terminated the motion picture, television and other rights that had been granted in the "beloved children’s story ‘Lassie Come Home’", which her father first published in 1938. In so holding, the Ninth Circuit significantly narrowed its precedent-setting 2005 copyright termination opinion relating to "Winnie the Pooh," which held that copyright grantees could renegotiate their terminable grants and, thereby, avoid termination under Section 304 of the Copyright Act. Offering some hope for grantees seeking to renegotiate their terminable copyright grants, the Classic Media decision left the door slightly ajar to the possibility that a renegotiation did not have to occur during the actual five-year termination window but could instead occur at any time during the longer statutory notice period. But just one month later the Second Circuit kicked that door wide open in an opinion relating to various novels and other works written by John Steinbeck. Until there is a case resolving the issue in the Ninth Circuit or in the United States Supreme Court, copyright grantees seeking to renegotiate terminable grants should consider taking advantage of the precedent in the Second Circuit that now appears to be more tolerant of renegotiations on this issue by designating New York choice of law and venue in their renegotiated contracts.
 

The following article by Ben Mulcahy was originally published in The New York Law Journal. To read the article please click here, or visit The New York Law Journal.
 

Author's Note: A footnote was inadvertently left of the version of this article that went to press. That footnote was in reference to the termination notice period for Superman opening in 1970. The omitted footnote read "These dates were chosen to mirror the dates in the Siegel case that follows, and the 1970 date is when the notice window would have opened if there had been a termination right that year, but the Copyright Act was amended in 1976, effective 1978, and there was no termination right prior to that."
 

Authored by:

Benjamin R. Mulcahy

(212) 332-3841

bmulcahy@sheppardmullin.com

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“Seventy years after Eric Knight first penned his tale of the devoted Lassie who struggled to come home, at least some of the fruits of his labors will benefit his daughter.”

So said the U.S. Court of Appeals for the Ninth Circuit in Classic Media Inc. v. Mewborn on July 11, 2008, when it held that Eric Knight’s daughter had duly terminated the motion picture, television and other rights that had been granted in the “beloved children’s story ‘Lassie Come Home’” which her father first published in 1938.1 In so holding, the Ninth Circuit significantly narrowed its precedent-setting 2005 copyright termination opinion relating to “Winnie the Pooh.”2 Moreover, just a month after Classic Media, in an opinion relating to various novels and other works written by John Steinbeck, the U.S. Court of Appeals for the Second Circuit diverged from the Ninth Circuit’s narrower approach.

This article by Ben Mulcahy was originally published in the New York Law Journal. To read the article please click here, or visit the New York Law Journal website.

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In a decision that could have far-reaching implications for technology licenses of all types, the U.S. District Court for the Central District of California recently held that the first sale doctrine permits a recipient of promotional CDs to sell them online without violating the license pursuant to which the CDs were distributed and without being liable for copyright infringement.  UMG Recordings, Inc. v. Augusto, No. CV 07-03106, slip op. (C.D. Cal. June 10, 2008).  The court granted the defendant's motion for summary judgment and rejected Universal Music Group’s (“UMG”) argument that the labeling on the promotional CDs created a license without transferring title.

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Although the WGA strike is reportedly near an end, the strike has naturally made it harder to find paid acting jobs in film and television, causing a greater number of Hollywood celebrities (and their agents and other reps) to pursue endorsement opportunities and the money that follows.  The money, however, doesn't just go to the celebrities and their reps.  It also goes to the trustees of the applicable guild's Pension and Health Plan.  The amounts being claimed by the trustees, and in some cases the threshold issue of whether the trustees are entitled to ANY amounts, are increasingly being challenged.  This blog entry briefly discusses the allocation issue and the jurisdiction issue.

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The Advertising and entertainment industries have merged.  While product placement  and brand sponsorship have been features of entertainment programs since the early days of radio, the efforts to integrate brands and brand messages into entertainment programming during the past few years have become more systematic and sophisticated than ever before.

This article by Ben Mulcahy was originally published in the Los Angeles Lawyer. To read the article please click here, or visit the Los Angeles Lawyer website.

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