Right of Publicity and Amateur Athletes

There is currently pending in a Northern California Federal Court a dispute between college athletes and Electronic Arts, the NCAA, and the Collegiate Licensing Company a right of publicity suit over the use of a college athlete's name and likeness in video games.  Collegiate athletes are not allowed to receive certain types of benefits for playing.  However, many states recognize the ability of a person to use their name and likeness, or more appropriately, to prohibit others from using their name and likeness.  The right of publicity stems from a person's right to privacy.

On the other side of the coin is the venerable First Amendment.  Oftentimes, the First Amendment is a valuable tool in combating against claims of theft of intellectual property (trademark, copyright, right of publicity).  To overcome the First Amendment defense, those seeking to assert their right to publicity will need to show that their right trumps the defendants' right to Free Speech.

It seems to me that the way forward for the athletes is to convince the Court that the use of the likenesses of the athletes is a significant aspect of defendants' ability to profit from their endeavors.  Of course, the schools and the NCAA already profit greatly from exploiting their athletes, but that is a blog for another time.

Foreign Works Yanked from the Public Domain

The Supreme Court recently upheld the law granting copyright protection to several foreign works which were in the public domain--meaning they were available to the public. The law came about in order to bring the United States in compliance with the Berne Convention.  The law granted copyright protection for foreign works that never received protection in the United States because they were published in countries that had lacked copyright relations with the United States.  It also provides copyright protection to works in the public domain due to technical defects in meeting the requirements of the Copyright Act.  In a 6-2 ruling, the Supreme Court held that Congress acted within its powers in enacting this law. Congress reasoned that full participation in the Berne Convention best served the interests of the United States. 

The movie, music, and publishing industries believe that the Supreme Court's ruling will open the door for them to obtain reciprocal rights overseas.  However, the ruling does create some chaos in that there are now works which persons did not have to pay for and now will have to pay to use those works. I am also not sure about the reciprocity idea, but I guess the proof is in the pudding on that issue.

On the other side of the issue were orchestra conductors, performers, educators, among others, who believed that Congress exceeded its powers to take away works that they could perform or share freely because they were in the public domain.  Not surprisingly, Google was also on this side of the argument. 

The Supreme Court's ruling is another in a series of others giving Congress broad discretion with regard to enacting Copyright laws. Indeed, it appears as if Congress over the last few years has worked to increase copyright protection in response to pressure from the entertainment industry.  With the expansion of the technology sector (especially the "new" media like Google, Facebook, etc.), Congress will now have to walk a tightrope to satisfy both sides.  The perfect example of the tension between the two sectors can be found in the recent fight over SOPA and PIPA. 

The way we share works and information is changing and Congress should work harder to balance the interests of all.  The overriding purpose of intellectual property laws (like the Copyright Act) is to "promote the Progress of Science and useful Arts." (U.S. Const., Art. I, Sec. 8)  In order to promote the arts, Congress should allow authors to utilize and use works after they have fallen in the public domain.  Continually providing for longer protection or yanking works out of the public domain, in my opinion, does just the opposite--it stifles creation.

China Now Is Knocking Off Fine Wines

Well, I guess it was just a matter of time until the resourceful knock off artists targeted high end wines.  Given that China's upwardly mobile citizens are quick to show off their new wealth and supposed sophistication.  The Chinese are apparently using their new wealth to consume imported wine and other luxuries.  This, in turn, has led foreign producers into looking to unlock the lucrative Chinese market.  According to the Wine Institute, China is the fifth largest foreign market for wines.  Even Yao Ming, the former NBA basketball star, is getting into the wine business by importing a Napa Valley Cabernet that retails for almost $ 300 a bottle. 

All of this opens the way for knock off artists.  The Chinese market is particularly vulnerable to the knock offs because the allure is more about the label and less about the way the wine pairs with the meal.  As relatively newcomers to the higher end wines, the Chinese in general have a less well developed palate.  Also helping the counterfeiters is China's inconsistent enforcement (that is no surprise). 

You have to give it to the counterfeiters.  They found a weakness in the consuming public, in enforcement, and an easy way to knock off high end wines.  The two primary ways that the counterfeiters do their work is to purchase or obtain emptied bottles of high end wines and refilling them or tweaking the label slightly.  Not much different than the way they counterfeit almost anything else.  So, when in China, be careful when ordering that imported wine.  

Facebook's "Sponsored Stories" Are Facing a Court Challenge

Last year, Facebook began utilizing ads it called "Sponsored Stories."  When a Facebook friend clicked "Like" on a product, page, or company, Facebook automatically created an ad for that site including the friend's name and photo.  Because California is one of the few states that has a right of publicity law (i.e. making it illegal to use a person's name, image, or likeness without consent), several Facebook users sued Facebook claiming misappropriation of their name and image.

 Facebook argued that the ads fit within the "newsworthy" exception, and therefore, Facebook did not require consent of the users.  The exception applies to the use of another's name, image, or likeness without consent if done "in connection with any news, public affairs, or sports broadcast or account, or any political campaign."  Facebook's argument was that the users were "public figures" to their Facebook friends.  A thin argument, indeed.

The judge was not impressed and ruled against Facebook stating that the exception did not apply to purely commercial uses of  newsworthy actions.  Interestingly, the court appeared to not fully understand that there are "Facebook friends," and then there are "Facebook friends." There are those who are Facebook friends with people they barely know, and therefore, it cannot be that the users are "public figures" to that category of Facebook friends.

Nevertheless, an appeal is most likely imminent.  Stay tuned.

Ex-Employee Sues James Cameron Alleging Theft of Avatar Script

When submitting an idea to a producer, it is always a good idea to get a non-disclosure agreement and an acknowledgement that the person understands that the idea is yours.  Too many times, inventors or authors simply submit their ideas blindly to producers in the hopes of selling or licensing the idea to an entity with the resources to see it through to market.  Because of this, many companies will not open and will return any mail that appears to have an idea submission without some sort of agreement between the parties about the use or ownership of it.

The situation changes slightly when the person submitting the idea is an employee of the producer and that person's job description includes creation of such ideas.  Employees who invent something or create an idea as part of their employment generally do not own their rights to that invention or idea (this is somewhat of an oversimplification) because employers will have what is called a "shop right" in the invention or idea.  A "shop right" is essentially a license created by law from the employee to the employer.

Given the foregoing, it is interesting that a former employee of a production company is suing James Cameron and his former employer, Lightstorm, for "stealing" his story about an "environmentally-themed 3-D epic about a corporation's colonization and plundering of a distant moon's lush and wondrous natural setting."  Hmmmm, sure sounds like the plot for Avatar.

Now, before jumping to conclusions, it is conceivable that James Cameron or one of his "people" came up with the idea independently of the Lightstorm's employee, and therefore, there would be no copyright infringement.  This one may be a fun one to keep an eye on.

Vera Wang Rebrands Herself

A while ago, I wrote an article about how Silver Oak Vineyards used a "pseudo-brand" for its Merlot because it did not want to dilute its Silver Oak brand which was known for its Cabernet.  If you are interested, the article can be found here:  http://mcclimanlawfirm.com/pdf/June.2004-ICC Article.pdf

Now, it appears as if Vera Wang is doing the exact opposite in an effort to strengthen her brand.  Apparently, Ms. Wang is looking to rebrand her ready-to-wear line (currently, "Lavender") to "Vera Wang" which is her bridal gown brand.  She is also trying to broaden her brand's reach to include men's fashion and teen clothing.

Clearly, Ms. Wang and her team have figured out that the middle-level brands are what will allow her company to grow in this tough economy.  Although, it is no secret that she is using the strength of her Vera Wang brand for her bridal gown line to bolster these other lines.

Of course, this strategy does not come without risks.  As with Silver Oak, she risks diluting her brand and/or confusing customers about the source or quality of her products bearing her well-known brand.  In fact, Ms. Wang shut down her Lavender collection during the economic downturn.  Interestingly, Ms. Wang's lower end lines (sold in Kohl's) are doing well.  This may be an indication of how the economy has affected consumers as much as Ms. Wang's lines.

Only time will tell if Ms. Wang's strategy for her brand will work or not.

Facebook Follies at Work

In the age of increased social media where many more are embracing and putting their lives and thoughts on Facebook, Twitter, and other social media avenues, employees beware.  Everyone at some point complains about their job, their bosses, or their co-workers.  Just keep in mind when those complaints appear in the social media realm, it is not "private."  Here are some ways not to cause a career implosion on social media.

First, do not insult your clients or your customers.  More importantly, do not use profane language to describe the clients or customers.  There have been many who have lost their jobs because of complaints put in cyberspace via Twitter or Facebook.

Second, do not insult your employer even if you are about  to give notice or leave.  Burning bridges is never a good idea, but to do so in a more permanent forum is even worse. 

Third, be cognizant of the photos you post.  Posting all the photos of you at parties with drink in hand and a face that says "drunk off my booty," is probably not the best idea.  And, definitely learn from Anthony Weiner's mistakes and don't post risque photos or other inappropriate photos of yourself.

Fourth, if it is your company's, your client's, or anyone else's confidential information, then please do not post it in a public forum.

Fifth, posting offensive comments about your employer or others will not reflect well on your character.

While certain types of comments are acceptable, discretion is always the better part of valor.  When you post, keep in mind that Big Brother, Big Sister, and Employer may be watching and post accordingly.