President Trump and the Right of Publicity of a political figure

25 02 2017

FEB. 13, 2017

Mother Jones

No one has entered the White House with a greater sense of self-worth than Donald Trump. The president considers his personal brand to be one of his biggest assets—valued at $3.3 billion, in his own estimation. (Forbes, which has spent yearsreporting how Trump inflates his net worth, says the actual value is intangible.) Trump and his companies have registered hundreds of trademarks with his name in them, from The Donald to The Trump Follies. Never in American history has there been a president more concerned with controlling his image, not simply as a matter of personal pride, but as a matter of preserving his bottom line.


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Avvo’s Attorney Profile Pages Don’t Violate Publicity Rights–Vrdolyak v. Avvo

7 02 2017

Publicity right laws often prohibit the use of third parties’ names (or other aspects of their personalities) “for commercial purposes.” So what’s a “commercial purpose”? Fuck if I know. We might make the term coextensive with the Constitutional law definition of “commercial speech,” but that provides precisely zero help because there are multiple inconsistent definitions of that term too. Because no one really knows the commerciality borders for publicity rights (or any other) laws, defendants sometimes struggle to get quick courtroom wins in publicity rights cases, even when they publish obviously editorial content.

Against this backdrop, Avvo scored a nifty early victory in a case challenging its attorney profiles. Avvo creates the profiles without consent from the profiled attorneys, and then displays advertising on the profiles and uses them to upsell Avvo memberships.

Case citation: Vrdolyak v. Avvo, Inc., No. 1:16-cv-02833 (N.D. Ill. Sept. 12, 2016). The initial complaint (Bernstein v. Avvo).



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Adding Derogatory Caption to Photo Meme Can Be False Light–S.E. v. Chmerkovskiy

7 02 2017

S.E. has Down Syndrome. The complaint alleges that in 2008, S.E. attended a baseball game (at the age of 8) in Nashville and was photographed standing outside the stadium near a concession stand. The photographer posted the photo to his Twitter account with the caption “everything that’s wrong with America.” The photo became a meme. In 2014, it was posted to CBS News’ website. A few years later (in 2016), Valentin Chmerkovisky (the “Dancing with the Stars” pro) posted the meme to his Facebook page with the following caption:

Letting your kid become obese should be considered child abuse.

The photo has been viewed by many of Chmerkovskiy’s “quarter million” followers on Facebook. Chmerkovskiy later posted the following statement:

I’m truly sorry for the lack of sensitivity . . . but one some level I have to agree . . . You’re handicapping your kid, and they’re defenseless. They don’t know better, that’s why you’re there . . . anyway I’m just a childless preacher, but here’s some food for thought. #nopunintended.

While unclear, it appears he posted this statement after S.E.’s mom complained to him and asked him to take down the photo.

Case citation: SE v. Chmerkovskiy, 2016 US Dist LEXIS 159471 (M.D. Tenn. Nov. 17, 2016)



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“Kurt The CyberGuy” Loses Publicity Rights Claims Against TV Station–CyberGuy v. KTLA

4 02 2017

Knutsson was a technology reporter and creator of the “CyberGuy” persona. He worked for TV station KTLA between 1996 and 2011. In 2005, he entered into an agreement with KTLA to be paid an annual salary of $325,000 a year plus annual increases. [Note to self: try to find side gig as a tech television reporter.]

The agreement gave KTLA ownership over Knutsson’s work and gave KTLA the “unlimited right . . . to exploit the programs, recordings or any portions thereof” in any manner and by any method and in all media. The agreement broadly allowed KTLA to use CyberGuy’s content

in all forms of reproduction, transmission, exhibition, display, and presentation, including television, theaters, . . . libraries, devices marketed for the home . . . books, periodicals, wireless, internet uses and all other types of exploitation now existing or hereafter devised.

The agreement allowed KTLA to edit, rearrange, and otherwise modify the work. It also allowed KTLA to license CyberGuy material up- and down-stream to other stations owned by KTLA’s parent entities. A provision in the agreement said the content would be distributed under the “CyberGuy” brand. It allowed Knutsson to distribute the materials in two particular cities with the caveat that, if KTLA’s parent acquired a station in either city, the parent would have the exclusive right to air the material in the particular market.

The agreement contained two restrictions. First, it said that KTLA could not use Knutsson’s name and likeness as an endorsement. Second, it said that nothing in the agreement gave KTLA “ownership in the CyberGuy designation used by [Knutsson].”

KTLA severed its relationship several years into the last renewal and employed a new tech reporter. After the termination, the CyberGuy material continued to be published on the KTLA sites and sites for KTLA’s affiliated entities. Knutsson’s lawyer sent a cease and desist letter, and Tribune undertook steps to remove some (but not all) links to Knutsson’s content. Apparently, the links to content were removed from the main site but not from permalinks. Knutsson filed suit, alleging among other things, violation of his publicity rights. (He also asserted employment claims, but those were not a part of this appeal). The trial court denied defendants’ request to dismiss the publicity rights claims. On a request for a writ of mandate, the appeals court grants relief to the defendants and directs the trial court to dismiss the claims.


Citation: Local TV, LLC v. Superior Court, B271883 (Ca. Ct. App. Sept 2, 2016) [pdf]

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Apple sued over singer’s right of publicity in iPhone ad singing

29 01 2017
An iPhone ad featuring the Jamie xx song “I Know There’s Gonna Be (Good Times)” is the subject of a lawsuit filed Tuesday in California Superior Court.

The plaintiff’s convoluted connection to Apple is laid out by The Hollywood Reporter, which was first to report the case. “I Know There’s Gonna Be (Good Times)” is the most popular track on Jamie xx’s 2015 Grammy-nominated album In Colors. That album includes samples from a 1971 song by The Persuasions called “Good Times.”

Persuasions lead singer Jerome Lawson is the plaintiff in the new suit against Apple—but this isn’t a copyright case. Rather, Lawson has said that the use of his voice in the ad violates his right of publicity under California state law.


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