Publicity II

Intro to IP – Prof Merges

4.26.2010

Agenda

• White v Samsung

• Comedy III v. Gary Saderup

Panel Majority Holding

• District court reversed: Samsung infringed Vanna White’s right of publicity under cases such as Midler v. Ford Motor

• Expansion from photo to voice to other “likeness” such as this reference in the ad

Kozinski dissent

The majority isn’t, in fact, preventing the ‘‘evisceration’’ of Vanna White’s existing rights; it’s creating a new and much broader property right, a right unknown in California law. It’s replacing the existing balance between the interests of the celebrity and those of the public by a different balance, one substantially more favorable to the celebrity. – IPNTA 5th at 1029

Kozinski points

• Lack of balance

• No explicit parody defense

• No first amendment analysis

Why it matters

• For better or worse, we are the Court of Appeals for the Hollywood Circuit. Millions of people toil in the shadow of the law we make, and much of their livelihood is made possible by the existence of intellectual property rights. – IPNTA 5th at 1033

Big Picture

But reducing too much to private property can be bad medicine. Private land, for instance, is far more useful if separated from other private land by public streets, roads and highways. Public parks, utility rights-of-way and sewers reduce the amount of land in private hands, but vastly enhance the value of the property that remains. – IPNTA 5th at 1027

A Property Rights View

Private parcels

Public Street

Mix of Open and Closed Maximizes Value

Linux

Private Firm Applications: IBM, RedHat, HP, Sun, etc.

Growing sophistication/development of rt

of publicity

• Markets for right of publicity

• Defenses to actions

• Descendability/enforcement

Moe Howard was born on June 19, 1897, in Bensonhurst, New York, a small Jewish community on the outskirts of Brooklyn. Moe's real name was Moses Horwitz. Moe's mother's name was Jennie Horwitz, and his father was clothing cutter Solomon Horwitz.

Curly Howard's real name was Jerome Lester Horwitz. He was born to Jenny and Solomon Horwitz on October 22, 1903, the fifth and youngest of the five Horwitz brothers.

Larry Fine was born Louis Fienberg on October 5, 1902 on the south side of Philadelphia, Pennsylvania. His father, Joseph Fienberg, and mother Fanny Lieberman, owned a watch repair and jewelry shop.

Gary Saderup wants his audience to "see into the hearts" of his subjects. If you look into the eyes of his works, you can see just that. At age five, Gary began art lessons and continued his drawing throughout childhood. Building on his multifaceted abilities, he majored in illustration and film while attending the Art Center College of Design in Pasadena, California.

• C3 Entertainment, Inc.’s Licensing Division is charged with the responsibility of managing the licensing and merchandise program for The Three Stooges. We accomplish this through the pursuit of the right commercial opportunities that properly preserve the integrity of The Three Stooges while maintaining desired branding and positioning for The Three Stooges.

We devote personalized attention to each of our nearly 100 licensees and we are sensitive to the unique situations and financial goals of each. Years of experience combined with a true sense of support and responsiveness for our licensees distinguish C3’s licensing team as one of the best in the industry.

Contact us today and let us explore together how we can develop mutually beneficial merchandising and licensing programs.

• -- http://www.c3entertainment.com/licensing.asp

Comedy III v. Gary Saderup

• Facts

• Doctrine

• Theory

Facts

• Lithographs (prints)

• T-shirts

• Based on original charcoal drawing

State by state variation

• California, NY, Tennessee

• Indiana: center for publicity licensing

Judge Stanley Mosk

“Unfortunately morality appears to be a waning rule of conduct today, almost an endangered species, in this uneasy and tortured society of ours: a society in which sadism and violence are highly visible and often accepted commodities, a society in which guns are freely available and energy is scarce, a society in which reason is suspect and emotion is king. Thus with a feeling of futility I recognize the melancholy truth that the anticipated dawn of enlightenment does not seem destined to appear soon.”

Advertising v. Expressive Works

• Advertising is “commercial speech,” subject to lower level of protection than other speech, including expressive works

• Supreme Court caselaw

Cal Civil Code 3344.1

• “Name, voice, signature, photograph or likeness”

• “on or in products, [or for] advertising . . . Products”

• Holder of rights: sub. B – by will or contract; (d) by statutory descent

• Duration: 50 years after death

• Note “class voting” rules

• Moe and Larry died in 1975, Curly in 1952

• What is the remaining term of protection in California?

• "Saderup's lithographic prints of The Three Stooges are themselves tangible personal property, consisting of paper and ink, made as products to be sold and displayed on walls like similar graphic art."

• If all graphic art is the relevant "product," then any reproduced likeness of the celebrity is prima facie infringing

• Must look for a statutory or First Amendment defense

Defemation

• Public figures vs. “ordinary people”

• Gertz v. Welch

• Actual malice/reckless disregard for truth

Prior restraint

• Injunctions in 1st Amendment cases

• Heavily disfavored

– National security, one of the few exceptions

Primary distinctions

• Andy Warhol's silk-screen prints of Marilyn Monroe, Elizabeth Taylor and Elvis Presley: okay under the “transformative” test

• But Saderup’s prints are not

– Justification?

IPNTA 5th at 1047

• Saderup argues that it would be incongruous and unjust to protect parodies and other distortions of celebrity figures but not wholesome, reverential portraits of such celebrities.