Blog Marie-Andree Weiss

Ladies [and Gentlemen] Now Let’s Get [IP] [“INFORMATION”]

September 30, 2016 · by marie-andree@maw-law.com ·

Matthew Fulks, an independent filmmaker, had filed a copyright infringement suit against Beyoncé on June 8, 2016, claiming that the trailer (the Trailer) for her “Lemonade” movie (the Movie), which accompanied the April 2016 release of her Lemonade album, infringed on his copyright in the short movie Palinoia. Fulks created the seven-minute Palinoia movie in 2014, which the Seconded Amended Complaint (SAC) describes as “carefully selected but seemingly unrelated visuals in a rapid montage, with the recitation of a poem used as voiceover against a distinctive audio soundtrack.” The short movie “depict[s] the pain of a tumultuous relationship.”

On September 12, 2016, Judge Rakoff from the Southern District of New York (SDNY) granted Beyoncé’s motion to dismiss, writing a thoughtful and entertaining opinion, where Voltaire, Oscar Wilde, the Beatles, Tchaikovsky, Andy Warhol and Taylor Swift all made an appearance. The case is Matthew Fulks v. Beyoncé Giselle Carter-Knowles, Sony Music Entertainment and al., 1:16-cv-04278-JSR.

Elements of a Copyright Infringement Suit

If there is no direct evidence of copying, then plaintiff in a copyright infringement suit must prove that the defendant had access to the protected work and that there are substantial similarities of protectable material in the two works.

Plaintiff claimed that Defendants had access to his movie, as Plaintiff had submitted Palinoia to Defendant Sony/Columbia in July 2015, as part of an application for a directing job, and its receipt was acknowledged by email. Defendants did not deny this.
Plaintiff further alleged in the SAC that the Lemonade Trailer was substantially similar to Palinoia, including, but not limited to its “visual and auditory elements, visual and auditory sequences, themes, format, mood, setting, plot, and pace, all of which create a protectable total concept and feel” and that it was an unauthorized derivative work. 6817350670_37b75a516d_z

Judge Rakoff quoted the Second Circuit Yurman Design, Inc. v. PAJ, Inc. case, which defined substantially similar works as works which an “ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard [the] aesthetic appeal as the same,” and the Second Circuit Peter F. Gaito Architecture case, which explained that the courts apply the substantial similarity test by “compar[ing] the contested design’s total concept and overall feel with that of the allegedly infringed work… as instructed by our good eyes and common sense.”

No Substantial Similarity in the Visual Elements

Plaintiff alleged that the Trailer contained nine visual elements substantially similar to Palinoia’s visual elements. These elements are (1) a head down near a graffiti wall; (2) red persons with eyes obscured; (3) parking garage; (4) stairwell; (5) black and white eyes; (6) title cards screen; (7) grass scene; (8) feet on street; and (9) side-lit ominous figures. The SAC has side-to-side screenshots from both works illustrating the allegations.

Judge Rakoff engaged in an analysis of these nine elements, but was not convinced that the Trailer infringed Palinoia. Instead, “[o]nce stripped of unprotected elements and scenes a faire, these scenes from Palinoia and the Trailer and Film have very little in common.”

Not the Same Aesthetic Feel

Judge Rakoff was not convinced as “Plaintiff’s alleged similarities consist almost entirely of clearly defined ideas not original to plaintiff and of stock elements with which even a casual observer would be familiar. Moreover, to the very limited extent that there are even any superficial similarities, these are overwhelmed by the works’ vastly different creative choices and overall aesthetic feel.”

Judge Rakoff quoted the SDNY LaChapelle v. Fenty case, where the court explained that “[o]riginality in rendition may reside in the photographer’s selection of lighting, shade, lens, angle, depth of field, composition, and other choices that have an aesthetic effect on the final work.” In other words, you can have the idea of filming a parking garage, a grass scene or a distressed person heads down near a graffiti wall, but it is the expression of this idea which is protected, not the idea itself. As both works had been expressed in different ways, there were not similar.

For example, as explained by Judge Rakoff, when analyzing the first visual element claimed as original by plaintiff, a person seen head down near a graffiti wall, the concept of a “state of distress” is an unprotected idea, and it “flows naturally and necessarily that a distressed character would be leaning (as opposed to dancing) against something stable (as opposed to delicate) and that his or her head would be down (as opposed to up.)” Instead, what was essential as to whether there was infringement is the comparison of the way the two scenes were filmed. Because the scenes were aesthetically different, there was no infringement.Judge Rakoff analyzed all the nine visual elements in turn, and found that none of them had the same aesthetic than the Trailer. Therefore, he found them not similar with the Lemonade Trailer scenes.

No Substantial Similarity in the Auditory Elements

Plaintiff also alleged in his SAC that both works included “the voiceover of a narrator reciting poetry over the sounds in the background” and that the audio sequences of both works were substantially similar, as they both followed “a similar pattern in which harsh noises are separated by calmer sounds in a substantially similar time table” and both included “crescendos and decrescendos.”

But for Judge Rakoff, “no reasonable jury, properly instructed, could find infringement based on plaintiff’s… alleged similarities… [in] the works’ audio… The idea of juxtaposing poetry and disharmonious sound is not protectable.” Plaintiff must prove instead that the way he expressed this idea, such as his choice of poetry and sound, has been copied. However, Plaintiff did not prove this in this case.

Not the Same Total Concept and Overall Feel

For Plaintiff, the mood, setting, pace, and themes of both works were substantially similar which contributed “to the overwhelming similarity of total concept and feel.” Both moods were “heavy, dark, and angst-laden.’” Both settings included similar environments, such as an empty dark parking garage, grass field, and a stairwell. The pace of both works was “a rapid procession of short scenes or montage, interspersed with notable intermittent pauses through exaggeratedly slow scenes.” Also, both works had different themes “destruction, alienation, heartbreak, and chaos versus order.”
But Judge Rakoff noted, somewhat ironically, that:

“[a]pparently intent on exploring the boundary between idea and expression, plaintiff alleges that the works share the same narrative theme (“a struggle of a relationship”) and the same aesthetic mood and pace (“a pattern of successive montage of abstract scenes, with unknown or unclear meanings, pieced together in ‘short takes'”). These alleged similarities fall firmly on the side of unprotected ideas. The “struggle of a relationship” is a concept familiar to us all, and plaintiff is not the first individual – or artist – to comment on it. See, e.g., R. Hart-Davis, The Letters of Oscar Wilde 621 (1962) (“[H]earts are made to be broken”); Taylor Swift, “I Knew You Were Trouble”(2012).”

Plaintiff argued that the “race of the characters in the [Film] is irrelevant to the total concept and feel of a film about relationships.… Judge Rakoff wrote that the Lemonade Movie is not just about relationships, but instead:

“depicts the protagonist’s journey from a particular perspective: that of an African-American woman in a predominantly African-American community… The Film repeatedly references and dramatizes generations of African-American women, and in the background of one scene, the observer hears an excerpt from a speech by Malcolm X to the effect that the Black woman is the most “neglected” person in America…. This all takes place against what defendants accurately characterize as a “Southern Gothic feel.”… The settings transition between areas of New Orleans, the abandoned Fort Macomb, and an Antebellum plantation. These significant differences in characters, mood, and setting further distinguish the total concept and feel in the [Lemonade] Film from that in Palinoia.”

Plaintiff also argued that both works “portray a struggle of a relationship; the reasons for such struggle are unclear and irrelevant.” But for Judge Rakoff, “[t]his is like saying that Casablanca, Sleepless in Seattle, and Ghostbusters are substantially similar despite the different motivating forces behind the struggles there portrayed (Nazis, capitalism, and ghosts, respectively).”

Trailer, Movie, Album

Judge Rakoff remarked “that the differences in total concept and feel are initially more pronounced between Palinoia and the [Lemonade] Film than between Palinoia and the [Lemonade] Trailer” but that “the difference in overall concept and feel between Palinoia and the [Lemonade] Trailer still overwhelms any superficial similarities.”

I was surprised to read that Plaintiff claimed that the Trailer for the Lemonade Movie had infringed his own short movie, as it was meant to be a teaser announcement for both the Movie and the Lemonade album. As noted by Judge Rakoff, the Lemonade Movie “marks the protagonist’s progression through thematic headings, and narrates it with songs from the Lemonade album.” The Trailer shows scenes of the 58-minute Lemonade Movie, which itself follows the sequence of the Lemonade album, which itself narrates a story, from one song to another. There are several layers of creation behind the trailer, the originality of which stems from both the originality of the Lemonade Movie and the Lemonade album. The hurdles of proving substantial similarities between the trailer, a derivative work of an original work featuring another original work, and the short film, an original work in itself, was therefore very high.

This post was originally published on the 1709 Blog.

Filed Under: Copyright, Southern District of New York, Uncategorized · Tagged: Aestheetic Feel, copyright infringement, substantial similarity

We all root for a single conceptual separability test

September 22, 2016 · by marie-andree@maw-law.com ·

On 2 May 2016, the U.S. Supreme Court agreed to answer this question: “[w]hat is the appropriate test to determine when a feature of a useful article is protectable under § 101 of the Copyright Act”? The answer is likely to impact the U.S. fashion industry, as it may make copyright protection of designs easier or more difficult.

Clothes cannot be protected by copyright in the U.S. because they are un-copyrightable useful works, but some of their features or elements may be protected if they can be identified separately and exist independently of the utilitarian aspect of the garment. However, the circuit courts are using different tests to decide whether a particular feature can be conceptually separated from the useful article and thus protected by copyright.

Now, an ongoing dispute between two cheerleader uniform companies over whether the designs adorning uniforms can be protected by copyright will allow the Supreme Court to unify the conceptual separability test and provide clearer guidelines to designers seeking to protect at least some features of the clothes they create.

Varsity Brands (Varsity) designs, manufactures and sells cheerleading uniforms. It registered its copyright in five two-dimensional designs featuring various combinations of color blocks and stripes, some forming chevrons. In 2010, competitor Star Athletica (Star) published a catalog of cheerleading uniforms which Varsity believed to be infringing of its designs. Varsity filed a copyright infringement suit in the Western District Court of Tennessee against Star, which moved for summary judgment, claiming that the pictorial, graphical or sculptural elements of Varsity’s designs were not physically or conceptually separable from the utilitarian functions of the cheerleading uniforms.

Indeed, while §102(a)(5) of the Copyright Act expressively protects pictorial, graphic and sculptural works, useful articles are not protected by copyright. §101 of the Copyright Act defines a useful article as “an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.” However, §101 of the Copyright Act also states that a useful article may be protected if it “incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.”

On 1 March 2014, the Western District Court of Tennessee entered summary judgment in favor of Star, finding that the aesthetic features of the uniforms had merged with their functional features and were thus not conceptually separated from the utilitarian uniforms. Varsity appealed to the Sixth Circuit, which reversed the judgment. Star then filed a petition for certiorari to the Supreme Court, which was granted.

Physical separability

In order to find out whether a particular design which is part of a useful article can nevertheless be protected by copyright, courts determine if the design is separable, whether physically or conceptually, from the utilitarian aspects of the article or sculptural work.
§ 924.2(A) of the Copyright Office Compendium defines physical-separability as meaning “that the useful article contains pictorial, graphic, or sculptural features that can be physically separated from the article by ordinary means while leaving the utilitarian aspects of the article completely intact.” This stems from the 1954 Mazer v. Stein Supreme Court case, where a statuette which served as a lamp base was held to be copyrightable.

Conceptual separability

However, it is often not possible to physically separate a design from the utilitarian article, and thus courts also use a conceptual separability test. However, there is not just one separability test. Petitioner’s brief to the Supreme Court notes that there are nine conceptual separability tests, and that the Ninth Circuit rejected all of them in our case to create a tenth one.

For instance, the Second Circuit uses the Kieselstein-Cord test and checks whether the artistic features are “primary” and the utilitarian features “subsidiary.” The Seventh Circuit uses the aesthetic influence test, first applied in Pivot Point v. Charlene Products, Inc., where conceptual separability exists if the elements at stake “reflect the independent, artistic judgment of the designer.”
Law professors weighted in on the issue as well. For instance, Professor Paul Goldstein proposed a test to find out whether “a pictorial, graphic or sculptural feature incorporated in the design of a useful article is conceptually separable if it can stand on its own as work of art traditionally conceived, and if the useful article in which it is embodied would be equally useful without it.” Professor David Nimmer proposed the marketability test, where “conceptual severability exists when there is any substantial likelihood that even if the article had no utilitarian use, it would still be marketable to some significant segment of the community simply because of its aesthetic qualities.”

Varsity had unsuccessfully argued in front of the federal district court that because it sketches uniform designs independently of functional influences, the designs are conceptually separable from the utilitarian features of the uniforms, and thus protected by copyright under the Seventh Circuit’s aesthetic influence test. Instead, the district court found the Second Circuit Jovani Fashion Inc. v. Fiesta Fashions case persuasive, where the court had found the designs of prom dresses not protectable by copyright, because the decorative choices made to create the dresses had merged with their function of covering the body in an attractive way. The Second Circuit noted that the “design elements are used precisely to enhance the functionality of the dress as clothing for a special occasion.” Similarly, the District Court found in Varsity, citing Jovani, that a cheerleading uniform, just like a prom dress, is “a garment specifically meant to cover the body in an attractive way for a special occasion” and concluded that “a cheerleading uniform loses its utilitarian function as a cheerleading uniform when it lacks all design and is merely a blank canvas.”

The Sixth Circuit conceptual separability test

The Sixth Circuit created a five-part test to find whether a particular design is copyrightable. First, the court must find out whether a design is a pictorial, graphic or sculptural work. Such was the case here. Then then court must find out if the design is the design of a useful article. Such was the case here as well. Thirdly, the court must find out “[w]hat are the utilitarian aspects of the useful article.” The Sixth Circuit found that the function of the designs was to decorate the uniforms, noting that it is “well established” that fabric designs are protected by copyright. The fourth part of the test asks whether the viewer of a design can identify the pictorial, graphic or sculptural features separately from the utilitarian aspects of the useful article. The Sixth Circuit answered affirmatively, noting that “[t]he top and skirt are still easily identified as cheerleading uniforms without any stripes, chevrons, zigzags or color-blocking.” Finally, the fifth part of the test asks whether the design features exist independently of the utilitarian aspects of the useful article. The Sixth Circuit answered affirmatively, as the designs of the uniform are “wholly unnecessary to the performance of the garment’s ability to cover the body, permit free movement and wick moisture.”

The Sixth Circuit concluded that because the graphic features of Varsity’s designs can be identified separately and are capable of existing independently of the utilitarian asserts of the uniforms, they can be protected by copyright. It gave as an example the famous Mondrian dress created by Yves Saint Laurent, and noted that “the graphic features of Varsity’ cheerleading-uniforms designs are more like fabric design than dress design.”

Toward a single conceptual separability test

It is likely that the Supreme Court will coin its own conceptual separability test, which will then have to be used by all the courts. The fashion industry has much at stake in this case, as such a test may help designers to claim copyright protection for clothes and other useful works, such as handbags or shoes, or could make claiming copyright protection even more difficult.

This article was first published on the TTLF Newsletter on Transatlantic Antitrust and IPR Developments published by the Stanford-Vienna Transatlantic Technology Law Forum.

Filed Under: Copyright, Fashion Law, TTLF Newsletter · Tagged: Conceptual Separatibility, Copyright, Fashion Law, Supreme Court

Narrow Scope of New York Right of Publicity Statute Favors First Amendment, Not Lindsay Lohan

September 20, 2016 · by marie-andree@maw-law.com ·

Readers of this blog may remember that actress Lindsay Lohan sued Take-Two Interactive, the maker of the “Grand Theft Auto V” video game, claiming that it used her image when creating one of the characters of the game, a blond starlet. But, on September 1, a New York appellate Court ruled against Lohan, and also, in the same decision, against Karen Gravano of the VH1 reality TV show Mob Wives, who had similarly claimed that Take-Two had used her likeness in the video game.

The narrow scope of New York right of publicity law

New York has a limited right to privacy. Its only privacy law, New York Civil Rights Law §§ 50 and 51, does not recognize a general right to privacy, but only protects the right of publicity of a “person, firm or corporation” in order to prevent “uses for advertising purposes, or for the purposes of trade” of the “the name, portrait or picture of any living person without having first obtained the written consent of such person.”

Therefore, in order to be a misdemeanor under New York law, an unauthorized use of the name, portrait or picture of an individual must have been for trade or advertising. The scope of the law is quite narrow.

No use of the name, portrait or picture

The appellate Court dismissed Lohan’s claim, because the video game “never referred to Lohan by name or used her actual name in the video game, never used Lohan herself as an actor for the video game, and never used a photograph of Lohan.” Instead, the game features an avatar, not an actual image of Lohan. New York law does not recognize protection of the persona, and merely “evoking likeness,” such as using her hair length, white shirt, flashing the peace sign, or using her “screen persona,” as Lohan claimed Take-Two Interactive had done when creating the character, is not enough to trigger application of New York right of publicity statute.

No use in advertising or trade

The appellate court noted further that, even if the video game would indeed have used Lohan’s likeness within the meaning of New York right of publicity statute, it still would not have violated the law, because a video game is not an advertising or a trade within the meaning of New York Civil Rights Law § 50. Instead, it is a video game communicating ideas, and, as such, is protected by the First Amendment to the U.S. Constitution: “[t]his video game’s unique story, characters, dialogue, and environment, combined with the player’s ability to choose how to proceed in the game, render it a work of fiction and satire.”

A good decision for creators

If the New York law would be constructed by the courts to include use which merely “evoke” the persona of the plaintiff, creators of video games, such in this case, but also biographers, comic books artists, painters, caricaturists and novelists, who merely “evoked” the persona of an individual would have to prove that the use was protected by First Amendment, which may be challenging to do, and thus costly. The Supreme Court recently denied petition in the Electronic Arts v. Davis case, and so it will not answer the question asked by petitioner, “[w]hether the First Amendment protects a speaker against a state-law right-of-publicity claim that challenges the realistic portrayal of a person in an expressive work.” The Ninth Circuit did not find in this case that the use of likeness of former NFL players in a video game was protected by the First Amendment. This case was a California right of publicity case. Each state has its own statute, and there is no right of publicity federal statute, leaving for a diverse jurisprudence.

This article was originally published on The 1709 Blog.

Filed Under: New York Law, Privacy, Right of Publicity ·

Cheese! I Voted! Is It Legal to Post Selfies on Voting Day in New York?

April 18, 2016 · by marie-andree@maw-law.com ·

New York State is voting on April 19. The New York presidential primary election is open to voters who are registered as Democrats or as Republicans. Registered Democrats will vote to nominate the Democratic candidate to the Presidential election and the registered Republicans will vote to nominate the Republican candidate to the Presidential election.

However, neither registered Democrats nor registered Republicans will be authorized to take selfies with their ballots and post them on social media. This is because, under New York election law, it is a misdemeanor to show one’s ballot “after it is prepared for voting, to any person so as to reveal the contents, or solicit a voter to do the same.”

New York Election Law § 17-130.10:

Misdemeanor in relation to elections. Any person who:

Shows his ballot after it is prepared for voting, to any person so as to reveal the contents, or solicits a voter to show the same [is guilty of a misdemeanor.]

What does that mean?

That mean that you can take a selfie with your ballot, after you have filled out the bubbles for the candidates of your choice, the Presidential nominee and six of the delegates, or if you are voting with a voting machine, after you have made your choices before pulling the trigger down or pressing the button.

You cannot ask someone to post their own selfies with their ballots either, if they have filled out the bubbles as to reveal for whom they voted.

However, the law can be interpreted as authorizing voters to take a selfie with their ballot, before it has been prepared for voting. In New York, absentee voters are given paper ballots. Others are using voting machines. There are several voting machines models being used in New York State, depending on the county where you are voting. So you can take a selfie with your paper ballot, if it does not show for whom you are voting, and you can take a selfie in front of the voting machine, before starting the process to vote.

You can also take a selfie after you exit the voting poll, showing your nifty I Voted! sticker. However, New York Voting Laws prohibit, while the polls are open, to do

“any electioneering within the polling place, or in any public street, within a one hundred foot radial measured from the entrances designated by the inspectors of election, to such polling place or within such distance in any place in a public manner.”

This can be interpreted as requiring that you step out at least one hundred feet from the polling station before taking your selfie, if you plan to use that selfie to promote your candidate, or if you post it instantly on social media and certainly if you shout Yeah [insert name of your favorite candidate] ! while taking the selfie.

Also, it is forbidden by New York Election Law to have any “political banner, button, poster or placard in the polling place or within such one hundred foot radial.”

Therefore, you cannot wear the tee-shirt and the baseball cap you bought to support your candidate to go voting, nor can you wear any button showing your support for your candidate. If you wish to take a selfie wearing these after you voted, you will need to cover them up while in the polling place and while being within 100 feet from it. You can display them again or pull them out of your bag and take your selfie outside of this zone.

You may wonder: Why all these rules? Isn’t it free speech to take and publish a selfie?

Selfies Ban and Free Speech

This argument was made by three voters in New Hampshire who had posted pictures of their ballots on social media in 2014. But the State of New Hampshire had adopted that year a law making it unlawful for voters to take and disclose digital or photographic images of their completed ballots or to share such images on social media or by other means. This is considered a violation, and carries a possible fine of $1,000.

The law was enacted as a way to protect voters from being intimidated or coerced into voting for a particular candidate. One can imagine that a family member or an employer would pressure a voter to vote for a particular candidate and asking to see proof of it on social media. However, voter coercion is already prohibited by federal law.

U.S.C. § 10307(b)

Intimidation, threats, or coercion

“No person, whether acting under color of law or otherwise, shall intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for voting or attempting to vote, or intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for urging or aiding any person to vote or attempt to vote, or intimidate, threaten, or coerce any person for exercising any powers or duties under section 10302(a), 10305, 10306, or 10308(e) of this title or section 1973d or 1973g of title 42.”

States also have their own laws prohibiting vote buying and voter coercion, and New Hampshire has sucha law, including one prohibiting giving liquor to voters to influence an election.

N.H. Rev. Stat. 659:39 Giving Liquor

“Any person who shall directly or indirectly give intoxicating liquor to a voter at any time with a view to influencing any election shall be guilty as provided in RSA 640:2.

These three voters were investigated by the Attorney General’s Office, and they filed a suit to challenge the constitutionality of the law, claiming it was a violation of the First Amendment. They won in August of last year, as United States District Judge Paul Barbadoro from the Federal District Court of New Hampshire found the New Hampshire statute to be unconstitutional as a content-based restriction on speech. As such, in order to prevail, the government would have had to prove that they could not achieve their goal, to prevent vote buying and vote coercing, with less restrictive alternatives.

Judge Barbadoro noted that even as small cameras have been available for decades and smart phones equipped with a camera have been available for fifteen years, there had been no instance of them having been used to take images of ballots in order to buy or coerce votes.

Judge Barbadoro concluded that the government could “simply make it unlawful to use an image of a completed ballot in connection with vote buying and voter coercion schemes,” instead of generally prohibiting taking an image of one’s ballot.

House Bill 1143 was then introduced. It would have reversed the changes made in 2014 to the voting law and strike down the prohibition on showing a ballot. However, the bill was tabled (meaning it was killed) on March 23, as 221 representatives voted against it and only 119 in favor of it.

But the State of New Hampshire has appealed Judge Barbadoro’s decision. On April 15, the attorney for the three ballot selfie takers filed his brief for the appellees, and calls posting ballot selfies “innocent, political speech” (p.14). We’ll see how this case will evolve.

Go Vote!

Anyway, it is legal to encourage voters to go vote, and this is what I am doing now. Go vote on the 19^th! If you are not yet registered, and you are eligible to register to vote, do so ASAP so you will be able to vote in the next election!

Image is courtesy of The New York Public Library Digital Collections (Public Domain)

Filed Under: New York Law, Social Media Law · Tagged: Ballot Selfies, New York Laws, Selfies, Voting

Plus Ça Change… Prince, Rastafarians, and Fair Use

April 15, 2016 · by marie-andree@maw-law.com ·

You may remember that Richard Prince, the Gagosian Gallery, and Larry Gagosian have been sued by photographer Donald Graham for copyright infringement in the Southern District of New York (SDNY). Plaintiffs moved to dismiss on February 22, asserting a fair use defense (motion).

Appropriation artists and copyright

Prince used Graham’s Untitled (Portrait) to create one of the works presented at his New Portraits exhibition (I wrote about it here). The original image had been cropped and posted on Instagram, without Graham’s permission, by another Instagram user, then reposted by yet another user. Prince reposted it again from his own Instagram account, adding the comment “ReCanal Zinian da lam jam,” followed by an emoji (see p. 11 of the motion).

In his motion, Prince placed himself in “a long line of[appropriation] artists” such as Marcel Duchamp, Jasper Johns and Jeff Koons. The latter has been involved in several copyright infringement suits over his work, for instance Rogers v. Koons where the Second Circuit found no fair use. But in Blanch v. Koons, the Second Circuit found that Koon’s appropriation of a photograph reproduced, at a different angle, in a painting was protected by fair use. Following this Second Circuit decision, Judge Stanton from the SDNY denied plaintiff Blanch’s motion for sanctions, which gave him an opportunity to explain the dynamic between appropriation artists and copyright:

“Appropriation artists take other artists’ work and use it in their own art, appropriating it and incorporating it in their own product with or without changes. Because of this appropriation, often (as in this case) done without giving credit to the original artist, the appropriation artists can expect that their work may attract lawsuits. They must accept the risks of defense, including the time, effort, and expenses involved. While that does not remove the appropriation artist from the protection of the statute, litigation is a risk he knowingly incurs when he copies the other’s work.”

Is this case the same as Cariou?

In his motion, Prince argued that, in Cariou v. Prince, “the Second Circuit held that “appropriation art” created by Prince that is substantially similar to the artwork at issue here constituted fair use as a matter of law” and argues that the Graham lawsuit “reflects an attempt to essentially re-litigate Cariou and should be dismissed with prejudice”(p. 2). [I wrote about the Cariou v. Prince case here.)

However, every fair use case is different since fair use is a mixed question of law and fact, as acknowledged by Prince on p. 12 of his motion. In Cariou, the Second Circuit set aside five artworks, remanding to the SDNY to consider whether the use of Cariou’s work was fair. Because the case settled, the SDNY did not have an opportunity to rule on that point on remand. Whether a court will find this Prince work to be fair use is an open question.

Is Prince’s character of the use of Graham’s photograph the same than his use of Cariou’s photographs? The Second Circuit noted in Cariou that “[t]he portions of the [Cariou photographs] used, and the amount of each artwork that they constitute, vary significantly from piece to piece” (at 699). As the affirmative defense of fair use is a matter of both law and fact, Cariou cannot be interpreted as the Second Circuit having given carte blanche to Prince to create any derivative works based on Rastafarian photographs “as a matter of law.” Indeed, in Cariou, the Second Circuit took care to note that its conclusion that twenty-five of Prince’s works were protected by fair use “should not be taken to suggest… that any cosmetic changes to the photographs would necessarily constitute fair use“ (at 708).

Fair use or not?

The Graham photograph is somewhat similar to the Cariou photographs, as they are classic black and white portraits of a Rastafarian. However, if the nature of the original work is one of the four fair use factors used by courts to determine whether a particular use of a work protected by copyright is fair, the first factor, the purpose and the character of the use, is “[t]he heart of the fair use inquiry” (Blanch at 251).

A work is transformative, as explained by the Supreme Court in 1994, if it does not merely supersede the original work, but instead “adds something new, with a further purpose or different character, altering the first with a new expression, meaning or message… in other words, whether and to what extent the new work is transformative”,Campbell v. Acuff-Rose Music, Inc., at 577-578.

What is determining is whether the new work is transformative, and Prince recognizes this in his motion (p.1). He argued that, by incorporating Plaintiff’s photograph into a social media post, and adding “Instagram visuals and text,” the derivative work has become “a commentary on the power of social media to broadly disseminate others’ work” (p.3).

To create his Canal Zone series, Prince had torn multiple photographs from the Cariou book, enlarged them using inkjet printing, pinned them to plywood, then altered them by painting or collaging over them, sometimes using only parts of the original photographs, sometimes tinting them, sometimes adding photographs from other artists. The result was declared fair use by the Second Circuit. In our case, Prince inkjet printed his original Instagram repost of the Graham picture, complete with his comment, with no further change, except for the change in format and size.

But whether a particular work is transformative does not depend on the amount of sweat of the brow, and a derivative work can be created by a mere stroke of the pen, such as Marcel Duchamp’s L.H.O.O.Q. Nevertheless, the more detailed the process to create a derivate work is, the more likely it is transformative.

It remains to be seen if the SDNY will find this new Prince appropriation work to be fair use. The court is becoming somewhat an expert on appropriation art. Jeff Koons has recently been sued in the SDNY for copyright infringement over the use of a photograph by a commercial photographer, Mitchel Gray. Gray claims that his photograph of a couple on a beach, which he had licensed in 1986 to Gordon’s Gin for the company to create an ad, was reproduced the same year by Koons as part of his “Luxury and Degradation” series. Koons reproduced the whole ad, with no change. Mr. Gray only discovered this use in July 2015 and filed his suit.

We’ll see how this case and the Koons case will proceed. ReCanal Zinian da lam jam.

The post first appeared on The 1709 Blog.

Image is courtesy of Flickr user Joseph Teegardin under a CC BY-ND 2.0 license.

Filed Under: Copyright, Fair Use · Tagged: Appropriation Art, Art Law, Copyright, Fair Use

Monkey Business (Law): A TTLF Post

April 8, 2016 · by marie-andree@maw-law.com ·

The infamous monkey selfie is quite an interesting copyright case. I wrote about it in the latest issue of the Transatlantic Technology Law Forum (TTLF) newsletter. The blog post is here. What is the case about?

A human photographer set a camera in a reserve in Indonesia. A macaque named Naruto clicked the button while looking at the camera. A beautiful selfie is taken. Who owns the copyright of this photograph? Is the selfie in the public domain? Does the human photographer own the copyright? Or does Naruto own it?

The human photographer published a book featuring the selfie, along with other pictures taken by Naruto. The People for the Ethical Treatment of Animals (PETA) filed a complaint against him and the publisher, acting on behalf of the monkey. PETA lost the case.

Naruto had argued that he had:
“the right to own and benefit from the copyright in the Monkey Selfies in the same manner and to the same extent as any other author. Had the Monkey Selfies been made by a human using Slater’s unattended camera, that human would be declared the photographs’ author and copyright owner. While the claim of authorship by species other than homo sapiens may be novel, “authorship” under the Copyright Act, 17 U.S.C. § 101 et seq., is sufficiently broad so as to permit the protections of the law to extend to any original work, including those created by Naruto.”

Alas! Animals have no standing under the Copyright Act, meaning they cannot filed a copyright infringement suit (or any other lawsuit for that matter.) In Cetacean Community v. Bush, the Ninth Circuit Court of Appeals held that “if Congress and the President intended to take the extraordinary step of authorizing animals as well as people and legal entities to sue, they could, and should, have said so plainly.”

But that does not necessary mean that the human photographer owns the copyright in the selfie. The selfie is probably in the public domain in the U.S., but may not be in the European Union.

Image is courtesy of Flickr User Carine06 under a CC BY-SA 2.0 license.

Filed Under: Copyright, TTLF Newsletter · Tagged: copyright infringement, Public Domain, Selfie

Crowdfunding May Take Fair Use Where It Has Never Gone Before

April 8, 2016 · by marie-andree@maw-law.com ·

On December 29, 2015, Paramount Pictures and CBS Studios sued Axanar Productions and its principal Alec Peters, claiming that its short movie Prelude to Axanar infringes their copyright in Star Trek, as it is an unauthorized derivative work (Complaint). On February 22, 2015, Defendants filed a motion to dismiss (Motion), claiming that the complaint does not contain sufficient factual matters to put Defendants on fair notice of the claims against them.

Star Trek first appeared on television in 1966, and the original series ran three seasons until 1969. The franchise now comprises six television series and twelve movies. Another movie is set to be released on July 22, and another television show is planned. The Complaint claims that Star Trek is “one of the most successful entertainment franchises of all time.”

In one of the episodes of the original series, Captain Kirk, the captain of the U.S.S. Enterprise, meets his hero, former Starfleet captain Garth of Izar, and they discuss the battle of Axanar between the Klingon Empire and the Federation, which was won by Garth. Reading about the battle is required at the Starfleet Academy, of which Captain Kirk is a proud graduate. This is the only time the battle is mentioned in Star Trek.

The battle of Axanar is the topic of a short movie written, directed and produced by Defendants after a successful crowdsourcing campaign on Kickstarter. The movie has been shown for free on YouTube since 2014. Defendants are now raising money through crowdsourcing to produce a longer Axanar movie.

However, Defendants moved to strike Complaint’s allegation that they “are in the process of producing a film called Axanar.” They also argued the copyright infringement claim regarding the movie is premature, at it has not yet been made, and that “seeking to stop the creation of a work at this stage would [be] an impermissible prior restraint” (Motion to Dismiss p. 10).

Fan Fiction

The Complaint states that Star Trek “has become a cultural phenomenon that is eagerly followed by millions of fans throughout the world.” Indeed, Star Trek has its own fan fiction cottage industry. It includes short stories, novels, and even new episodes, such as those produced by “Star Trek: New Voyages,” a project which is also crowdfunded and produced by a non-profit. The first New Voyage episode was released in 2004 and the project is still going strong, without apparent concern from CBS and Paramount.

In an article published in 1997, Professor Rebecca Tushnet traces “[f]an fiction and organized media fandom… to the second season of Star Trek in 1967,” and cites a much earlier instance of fan fiction when Lord Tennyson imagined what happened next to Ulysses.

Under Section 106(2) of the Copyright Act, the copyright owner has the exclusive right to prepare derivative works. There is no doubt that fan fiction is derivative work, that is, “a work based upon one or more preexisting works.” Is fan fiction copyright infringement?

Copyright Infringement

Plaintiff in a copyright infringement suit must prove ownership of the copyright and must also prove actual copying. Copying may be proven by circumstantial evidence by showing access to the protected work and substantial similarity.

Plaintiffs claimed they own copyrights in the Star Trek television series and motion pictures. However, Defendants argued that the Complaint “lump[s] both Plaintiffs together and appear to allege collective ownership of all of the Star Trek [c]opyrighted [w]orks,” even though Plaintiffs cite a copyright assignment from Paramount to CBS, and “fail[ed] to specify which of those copyrights Defendants have allegedly infringed.”

Defendant, of course, had access to Star Trek. But Plaintiff must also prove substantial similarity between the original and the derivative work. The Ninth Circuit uses the extrinsic/intrinsic test created in the Sid & Marty Krofft Television Productions, Inc. v. McDonald’s Corp. case. The extrinsic text is thus called “because it depends not on the responses of the trier of fact, but on specific criteria which can be listed and analyzed. Such criteria include the type of artwork involved, the materials used, the subject matter, and the setting for the subject. Since it is an extrinsic test, analytic dissection and expert testimony are appropriate” (Sid & Marty Krofft at 1164).

The Complaint claims that Defendant’s short movie is substantially similar to the Star Trek works, listing similar characters, the use of the Federation, similar costumes, sets, props, and logos, and further claims that the “feel and the mood” of Defendant’s work is similar to the original works.

It is interesting to note that the Star Trek New Voyages project has also replicated some sets of the original series, such as the transporter room, the sick bay and the bridge of the Starship Enterprise, and used Star Trek characters and costumes, without having been sued for copyright infringement.

Possible Defense

Plaintiffs argue that the Axanar short movie is neither a parody nor fair use. Defendants calls it a “short mockumentary.” Could the fair use defense be successful? Defendants did not address the issue, arguing instead that the claim is unripe.

The four fair use factors are 1) purpose and character of the use, 2) nature of the copyrighted work, 3) amount and substantiality taken, and 4) effect of the use upon the potential market.

The purpose and the character of the use factor inquiry includes whether the use is commercial. Defendants explained on their website that Axanar is not licensed by Paramount and CBS, but that it is an “independent project that uses the intellectual property of CBS under the provision that Axanar is totally non-commercial. That means we can never charge for anything featuring their marks or intellectual property and we will never sell the movie, DVD/Blu-ray copies, T-shirts, or anything which uses CBS owned marks or intellectual property.” This statement has been since deleted. In a crowdfunding pitch video , Alec Peters explains that CBS has “graciously allowed” that he and others make Star Trek movies as long as they do not profit from it, sell anything with ‘Star Trek’ on it, and that they “have to honor the best story – telling tradition of Star Trek.”

Indeed, this is what Star Trek New Voyages has been doing for years. Defendants claim in their Motion that Prelude to Axanar is a ‘mockumentary,’ and indeed the video narrates the battle of Axanar using a format favored by the History Channel, as explained on Defendants’ site.

As for the nature of the copyrighted work, there is little doubt that the argument would go in Plaintiff’s favor, as the television series and the movies are highly creative. The third factor, the amount taken, could be in Plaintiffs or Defendant’s favor. It is hard to say without engaging in a complete analysis.

As for the effect upon the potential market, it could be argued that it is actually beneficial for Plaintiffs, not detrimental, and thus the fourth factor could be in favor of Defendants. Professor Tushnet noted in her article on fan fiction that the great success of the official Star Trek derivative works co-existed with numerous Star Trek fan fiction, and that this “provides strong evidence against the claim that fan fiction fills the same market niche as official fiction” (p.672). Could the same be argued for the Axanar movie if it is ever produced?

This Case May Very Well Stretch the Limits of Fair Use

This case is interesting as it shows that crowdfunded User-Generated Content could stretch the limits of fair use. It seems that CBS and Paramount have tolerated Star Trek fan fiction for years, understanding that what a copyright attorney may regard as unauthorized derivative work is indeed valuable user-generated marketing and promotional content.

But written fan fiction, even if published online, may not replace the experience of watching a Star Trek movie or television show. Crowdfunding has allowed the Axanar project to be built as a non-profit project, and it would not be shown in movie theaters. But it could nevertheless compete on the market with official Star Trek movies. Watching the Axanar short movie was quite entertaining, and I expect the future movie to be as well.

Producing such fan movies is not possible without crowdfunding. As more fan fiction is likely to be financed this way in the future, it will be interesting to see the effect of this practice on fair use, although I do hope fair use will live long and prosper.

This blog post was first published on The 1709 Blog.

Image of Star Trek figurines is courtesy of Flickr user Kevin Dooley under a CC BY 2.0 license.

Image of Spock being watched is courtesy of Flickr user JD Hancock under a CC BY 2.0 license.

Filed Under: Copyright · Tagged: Copyright, Crowffunding, Fair Use

Employer Cannot Ask Employee to Delete Tweets about Wages and Work Conditions

April 1, 2016 · by marie-andree@maw-law.com ·

On March 14, 2016, Administrative Law Judge Susan A. Flynn from the National Labor Relations Board (NLRB) ruled that Chipotle had violated Section 8(a)(1) of the National Labor Relations Act (NLRA) when it asked an employee to delete some of his tweets about employees’ wages or other terms and conditions of employment. The case is Chipotle Services LLC d/b/a Chipotle Mexican Grill.

Chipotle operates a nationwide chain of restaurants, and the employee who had posted the tweets at stake worked for one of Chipotle’s restaurants in Pennsylvania. While working there, he posted several tweets which attracted the attention of his employer’s national social media strategist, whose responsibility was to review social media postings made by employees in violation of Chipotle’s social media policy.

The employee’s tweets commented on the hourly wage offered by Chipotle and on the fact that employees had to go to work on snow days. The regional manager was informed about these tweets by the social media strategist. He came to the restaurant where the employee worked, showed him Chipotle’s social media policy and asked him to delete the tweets, which he did. However, the manager relied on an outdated social media policy, which had been forwarded to him by the social media strategist.

Later on, the employee circulated a petition asking the restaurant where he worked to stop denying breaks to employees, which he alleged was then occurring regularly. Following a testy conversation with his manager about the petition, he was asked to leave the premises, and was eventually fired. I will only discuss in this post the issue of the unlawfulness of asking the tweets to be deleted.

The outdated social media policy was unlawful

After the fast food worker’s Union filed the complaint, Chipotle moved for summary judgment, arguing that allegations based on an outdated social media policy are moot. However, Judge Flynn denied the motion, as the outdated policy may have played a role in the actions taken against the employee.

The two challenged provisions of the outdated social media policy were:

“If you aren’t careful and don’t use your head, your online activity can also damage Chipotle or spread incomplete, confidential, or inaccurate information.”

“You may not make disparaging, false, misleading, harassing or discriminatory statements about or relating to Chipotle, our employees, suppliers, customers, competition, or investors.”

The policy informed employees that violating these rules may lead to disciplinary actions, including termination.

However, Section 8(a)(1) of the NLRA prohibits employers “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 [of the NLRA].” Under Section 7, employees, whether they belong to a union or not, have the right to engage in “concerted activity for the purpose of collective bargaining or other mutual aid or protection,” NLRA §7, 29 U.S.C. §157.

Judge Flynn quoted the NLRB Lafayette Park Hotel 1998 case and the NLRB Lutheran Heritage Village-Livonia 2004 case to explain that under NLRB case law, an employer violates Section 8(a)(1) “when it maintains a work rule that reasonably tends to chill employees in the exercise of their Section 7 rights.” Indeed, the NLRB considers that a work rule violates Section 8(a)(1) if it explicitly restricts activities protected by Section 7 or if the challenged rule is such that: (1) employees would reasonably construe its language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.

In this case, the challenged social media policy did not explicitly prohibit Section 7 activity, but Judge Flynn found that employees would reasonably construe portions of the policy to restrict their rights under Section 7.

Prohibiting false, misleading, inaccurate and incomplete statements is unlawful

Judge Flynn found the provisions of the social media policy which prohibited spreading false or misleading statements to be unlawful. Such statements only lose their NLRA protection if the employee had a malicious motive in making these statements, meaning that the employee knew these statements were false, or that the employee had reckless disregard for their truth or falsity.

Prohibiting disclosing confidential information is unlawful

Judge Flynn noted that the social media policy did not define “confidential” and thus the word is “vague and subject to interpretation, which could easily lead employees to construe it as restricting their Section 7 rights.”

Prohibiting disparaging statements is unlawful

As for “disparaging,” Judge Flynn noted that prohibiting disparaging statements “could easily encompass statements protected by Section 7” and that the NLRB “has found rules prohibiting derogatory statements to be unlawful.” Judge Flynn quoted the recent Costco Wholesale Corp. case, where the NLRB determined in 2012 that a rule prohibiting speech “that damage the Company, defame any individual or damage any person’s reputation” was overbroad and thus violated the NLRA. Judge Flynn concluded that “[t]hus, disparaging statements would reasonably be construed to include matters protected by Section 7.”

Prohibiting harassing or discriminatory statements is lawful

However, Judge Flynn did not find that the prohibiting harassing or discriminatory statements violated the NLRA, as the NLRB does not consider such statements to be unlawful, even if they could be interpreted by an employee to apply to activities protected by Section 7.

Disclaimer does not cure unlawfulness of the social media policy

Chipotle’s social media policy ended with this disclaimer:

“This code does not restrict any activity that is protected or restricted by the National Labor Relations Act, whistleblower laws, or any other privacy rights.”

However,” [t]hat sentence does not serve to cure the unlawfulness of the foregoing provisions” according to Judge Flynn, citing Allied Mechanical, 349 NLRB 1077, 1084 (2007).

It was illegal to ask the employee to delete the tweets, because there were concerted activities

Section 7 of the NLRA protects the employee’s right to engage in concerted activities for the purpose of mutual aid or protection.

The tweets posted by the Chipotles’ employee were concerted activities under Section 7. They addressed working conditions and salaries at the restaurant, and “[w]ages and working conditions are matters protected by the [NLRA].”

The tweets were concerted activity even if the employee had not consulted his colleagues before posting them because they sought to initiate, to induce or to prepare for group action, or could be considered to be complaints brought to the attention of management. Also, the tweets were for the purpose of mutual aid or protection, as there was a link between the activity and the matters concerning the workplace or employee’s interests as employees.

Judge Flynn concluded that since the tweets were concerted activities, asking the employee to delete them violated Section 8(a)(1). Also, the judge found that management had implicitly directed the employee not to post similar tweets in the future, and thus had prohibited an employee from engaging in protected concerted activity.

Judge Flynn ordered Chipotle to “[c]ease and desist from directing employees to delete social media postings regarding employee wages or other terms or conditions of employment [and from] [p]rohibiting employees from posting on social media regarding employee’s wages or other terms or conditions of employment” and to further maintain social media policies limiting unlawfully employee’s rights to engage in Section 7 activity.

Judge Flynn also ordered Chipotle to rehire its former employee and to compensate him for any loss or earnings or benefits suffered as a result of his discrimination.

Photo is courtesy of Flickr user Sandy under a CC BY 2.0 license.

Filed Under: Social Media Law · Tagged: NLRB, Social Media Policy, Tweeting and the Workplace

Kendall Jenner Files Right of Publicity Suit

March 25, 2016 · by marie-andree@maw-law.com ·

On February 10, 2016, Kendall Jenner and Kendall Jenner, Inc., filed a right of publicity and trademark infringement suit in the Central District of California against Cutera, a provider of laser dermatological treatments. The case is Kendall Jenner Inc. v. Cutera, CD California, 16-00936.

Who is Kendall Jenner? Well, she is “one of the one of the world’s most popular supermodels” [sic] as the complaint explains (or hiccups?). She has “graced the covers of the world’s most prestigious fashion magazines” and “walked the runways for the elite of the fashion world.” She also is a “successful clothing designer” and a “well-known television personality” as the Keeping Up with the Kardashians reality show airs “in over 160 countries worldwide” (you read that right).

If all these achievements would not be enough, Ms. Jenner is also “one of the largest social media presences of any young woman of her generation,” with over 48 million followers on Instagram, over 15 million followers on Twitter, and some 12 million “likes” on Facebook. Wouldn’t it be nice if Ms. Jenner tweeted about this blog post?

Defendant Cutera is, according to the complaint, a “designer of medical aesthetic applications.” One of its products is Laser Genesis, a laser treatment which dermatologists may use to rid their patients of spider veins, dark spots, wrinkles, and other skin defects.

Just before the beginning of Fashion Week in New York, Cutera started advertising early February the Laser Genesis treatment in New York, particularly “outside New York skin care centers.” The ad features a picture of Plaintiff on the right side and reads at the top: Acne “Completely Ruined” Kendall Jenner’s Self-Esteem. The ad further claims that Laser Genesis is responsible for Plaintiff’s “nearly flawless skin.” The ad has also allegedly been distributed in California, around the U.S. and even around the world.

Alas, Defendant had allegedly not sought permission to use Plaintiff’s name and likeness. If this is proven, it would clearly be an infringement of Ms. Jenner right of publicity.

I will not address the trademark infringement claim in this post. Let’s just note that Plaintiff owns the KENDALL JENNER registered trademark in class 35 for “advertising services, namely, promoting the brands, goods and services of others” and “endorsement services, namely, promoting the goods and services of others.” The complaint alleges that Cutera’s ad is likely to create consumers ‘confusion, and capitalizes on Plaintiff’s good will. The complaint also alleges that the ad confuses the public to mistakenly believe that the famous model sponsors, endorses and is somewhat associated with Cutera, which would be a false association or endorsement under 15 U.S.C. § 1125(a).

Plaintiffs claim that Defendant has violated Ms. Jenner’s right to publicity, as protected by California Civil Code § 3344. The complaint does not elaborate on the right to publicity claim, but indicates that “Plaintiffs have suffered and will continue to suffer damages in an amount to be proven at trial, but not less than a number well into eight figures.”

Indeed, it is obvious that it is Ms. Jenner who is pictured on the ad, and therefore she is, under the California statute, “readily identifiable from a photograph when one who views the photograph with the naked eye can reasonably determine that the person depicted in the photograph is the same person who is complaining of its unauthorized use” (the ad is pictured p. 11 of the complaint).

There is no doubt that the ad is using Plaintiff’s name and likeness under California right to publicity statute “for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services.” Consent would be a defense, but it does not appear to be available to Defendant in this case.The complaint does not mention it, but Cutera tweeted in November 2015: “Have you heard? Kendall Jenner Admits to Getting #cutera #lasergenesis!” with a link to an blog post on the supermarket checkout gossip magazine Life & Style site, which in turn quoted a statement allegedly made by Ms. Jenner on her website. The link to this page on Ms. Jenner’s site now returns a 404 error message and the page seems to have been recently taken down, if one refers to the Internet Archive site. However, even if it would be true that Ms. Jenner had mentioned Laser Genesis on her website, this would not be an endorsement, only the expression of her opinion.

Indeed, if she had mentioned it on her site and not disclose that she had been compensated for the endorsement, it would have been a breach of the Federal Trade Commission Endorsement Guides. However, the part of the ad which quotes her as saying that acne “completely ruined” her life may be protected by the First Amendment, even if Ms. Jenner did not consent to its use , but that would be quite a stretch.

The complaint claims 10 million dollars in damages and further claims that, as Defendant has acted “willfully, maliciously, and oppressively,” Plaintiffs are thus entitled to punitive and exemplary damages as well. The case is likely to settle before going to trial.

Image is courtesy of Flickr User Brian Bald Under a CC BY-NC 2.0 License

Filed Under: Advertising Law, Right of Publicity ·

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