Guest Commentary R. Ben Sperry, Washington Legal Foundation Fellow & law student, George Mason U
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Originally released March 16, 2010:
Popular Internet model Denise Milani has retained the law firm of Beitchman & Zekian, PC to file a Complaint in the Los Angeles Superior Court in an attempt to reclaim her image from an unscrupulous photographer.
Milani’s complaint was filed on March 9 alleging that Matt Vantuch, a glamour photographer, Ishka Villcisneros, Vantuch’s personal assistant, and their company Periscope Entertainment, Inc. have unlawfully and maliciously taken control of her Web site, DeniseMilani.com, her Web site’s online store, and her MySpace, Facebook and Twitter accounts.
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Stay tuned for Is That Really Me?: Social Networking and the Right of Publicity in the Spring 2010 issue (Vol. 12, No. 2) of the Vanderbilt Journal of Entertainment and Technology Law. The abstract for the note is below:
Social networking sites are ubiquitous in modern culture and popular with people of all ages and demographics. Operators of this kind of site, which consist largely of third party generated content, are immune from many types of civil liability for third party postings under the Communications Decency Act. However, the Act does not immunize these providers from intellectual property right infringements. Recent court decisions suggest that this immunity exception may extend not only to federal intellectual property rights, but state intellectual property rights like the right of publicity. This Note will evaluate the emerging circuit split regarding state intellectual property liability for interactive computer service providers. After determining that the existing statutory scheme does not immunize these providers from state intellectual property liability, this Note will examine the problematic implications of right of publicity liability for social networking sites. This Note will then suggest two Congressional responses to this problem. First, it will analyze the incentives created by the various types of intellectual property rights to suggest that Congress should explicitly immunize interactive computer service providers from right of publicity liability in order to consistently promote the Communications Decency Act’s policy goals. Second, Congress could establish a federal right of publicity in order to minimize problems of interactive computer service providers trying to comply with the law.
Note Author: Rachel Purcell
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Ed O’Bannon, a marketing director for an auto dealership in Las Vegas, may play a pivotal role in forever changing how the NCAA does business. O’Bannon was a star basketball player for UCLA in the mid-1990s, and now he’s at the forefront of a class action antitrust lawsuit against the NCAA for its use of his likeness (and those of other athletes) in NCAA-licensed products, particularly video games. Several related claims by other former NCAA athletes have been added to the class action, including the lawsuit filed by former Nebraska and Arizona State quarterback Sam Keller seeking compensation from the NCAA and EA Sports for using his image in a college football video game. Granted, being the target of litigation is not an unfamiliar position for the NCAA, and it has successfully defended several legal challenges. Following a recent court ruling, however, O’Bannon’s class action is suddenly getting more attention.
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By Eric Goldman
Jones v. Minkin, 1:09-cv-23256-MGC (S.D. Fla. complaint filed Oct. 27, 2009). The Above the Law blog post on the lawsuit with links to the posts in question.
Given its history of provocative and occasionally aggressive blog posts, it’s actually a little surprising that popular law blog Above the Law has not been sued before. A blogger’s life is inherently filled with peril. We bet our houses with every blog post, and eventually the law of large numbers starts working against us. The risks are even greater for bloggers covering legal topics. By definition, we routinely cover people who are prepared to mix it up in court. As a result, it’s almost inevitable that blawgers who keep at it long enough will get sued eventually.
The plaintiff in this case is University of Miami law professor D. Marvin Jones, who in 2007 was improperly detained by police for possibly racist reasons. This prompted a series of blog posts on Above the Law that included an unflattering cartoon and unfavorable characterizations. Jones now claims that the blog posts put him in a false light, invaded his privacy and constituted copyright infringement because the blog posts used the photo from his university profile page. Although the complaint uses the word “defamation” earlier in the pleading, no defamation claim was alleged. For these violations, Jones asks for tens of millions of dollars to right the alleged wrongs.
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