Author: Sylvanna Le

Legal ink’s not dry on copyright for tattoos

For centuries, the human race has shown an affinity for body art, often capturing works of art onto the human “canvas.” From tribesmen to notable celebrities today, tattoos have persisted in culture as a personal identifier. Skin art has, of course, become an obsession of contemporary pro athletes in the NFL, boxing, UFC, soccer, and basketball. As they have taken even stronger and wider hold in pop culture, tattoos have become a focus of entertainment and sports industry insiders and legal departments needing to clear rights for creative projects. But can tats get copyright protection? Unfortunately, for Entertainment lawyers who are asked to weigh in on this question, answers are scant in this area of law and the merits of issue appear yet unresolved.  As one law firm has posted on its blog, celebrities and public figures may have rights of publicity, which give them certain sway over, “commercial exploitation of their images and likenesses.” But “when tattoos enter the picture, the issue is complicated; currently there is nothing in the U.S. Copyright law that bars tattoo artists from the same right to control and benefit from their art.” The popular press has explored concerns for companies about jocks, brands, copyright, and tats, suggesting loops and hoops all concerned might need to traverse. The issue has prompted at least one detailed law review article. A case involving boxer Mike Tyson that many thought might...

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Filmmakers’ win with a First Amendment blast

With everyone from Hollywood producers to video game makers poring over the headlines for compelling people stories to convert into hot properties or products, California’s right of publicity law long has sought to: recognize that an individual’s identity holds economic value; and protect celebrities and average folk alike, so they can control and profit from their name and likeness. The Golden State has been joined by others in crafting publicity rights that have protected notables like Michael Jordan  and Aretha Franklin. But the U.S. Court of Appeals for the Ninth Circuit has just clarified what happens when state publicity rights clash with First Amendment claims, especially in an instance involving a transformative retelling of the life of an ordinary individual thrust into great events of the time. The case involved Jeffrey Sarver, a onetime master sergeant, bomb disposal expert, and Iraq war veteran. He claimed that the main character in The Hurt Locker, as played by Jeremy Renner, was based on his life. As The Washington Post reported: “Sarver sued, claiming the film violated his ‘right of publicity’—his right to control the commercial use of his identity (here, not his name or likeness but elements of his life story).” The appellate court disagreed, finding the First Amendment barred Sarver’s claims because the Oscar-winning film was transformative and did not just piggyback on his story nor its economic value.  As federal judge Diarmuid O’Scannlain wrote for the appellate court:...

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2 empires collide over TM; Fox TV series wins

Empire, Twentieth Century Fox’s series, has made headlines since its January, 2015, debut for helping to revitalize television. With more viewers cord-cutting (with its legal risks),  TV networks have scrambled with varied results to win audiences back, resorting to live musical productions, special events, and exclusive concerts. For TV networks, Fox’s success with Empire was a refreshing ratings boost. Created by Lee Daniels of Precious fame, Empire offers its twist on King Lear: Instead of three daughters vying for a kingdom, three sons struggle to take on their dad’s hip-hop legacy and his fictitious record company, Empire Entertainment. That has displeased Empire Distribution, a real-life record label, music distributor, and publisher. It has worked with hip hop artists like Tyga, T.I., Ab-Soul, Busta Rhymes, Gladys Knight, Rae Sreummurd, and Kendrick Lamar (fresh off his win at the Grammy’s for “To Pimp a Butterfly”). Empire Distribution, arguing art imitated life too closely, demanded that Fox pay $5 million for using its trademark; the real Empire also sought a cease-and-desist order against the show. Fox filed a counter-lawsuit,  seeking a declaratory judgment that neither Empire as a show title nor the fictitious record company violated trademarks. Empire Distribution brought counterclaims. That was the status quo until a federal judge in Los Angeles granted summary judgment, ruling in Fox’s favor. Empire Distribution’s Claim Empire Distribution has trademarked Empire, Empire Distribution, Empire Publishing, and Empire Recordings.  Several  applications for its marks, including...

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Goliath of live concerts cleared on anti-trust

The way that fans interact with music has changed drastically in the decade, moving them away from getting them to form long lines at venues to buy tickets to concerts to doing so now online, at home, alone, instantly, and with a click of a mouse.  This also has meant that live performances sell out in mere minutes, whether they are music festivals like Coachella or  Adele’s upcoming tour.  The frenzy of camping out for shows has become antiquated. But has this technology-based change also given undue competitive advantage to big promoters with major name recognition? That has been a gripe of smaller players in the market, and it has become a more pressing issue to many as live concerts have become an ever more lucrative, central part of a music industry riven by streaming, recorded, published and performed ways of product distribution. The complaint chorus rose to a crescendo about Live Nation, one of the leading companies promoting, orchestrating, organizing, and booking artists for concerts.  A federal district judge had dismissed on summary judgment an anti-trust challenge to Live Nation; appellate judges recently affirmed that ruling. The courts have found that the company’s size was neither inherently good nor bad but that plaintiff It’s My Part Inc. (IMP) had provided insufficient proof that its anti-trust claim could succeed. The appellate opinion noted that IMP set up the case akin to a “David-and-Goliath battle between an industry behemoth and...

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Will nine black robes retool Batmobile ruling?

Na-na-na, Batman! Or should we say  Dark Knight or Caped Crusader? There have been many versions of Batman since the character launched in 1939. Each new Batman movie or television show brought not only new nicknames and new actors but also various Batmobiles. Each vehicle has differed — from Adam West’s convertible to George Clooney’s limo to Christian Bales’ motorcycle tank to Ben Affleck’s  dune buggy. But now the U.S. Supreme Court has been asked to decide if the car that helps the caped crusader thwart evil is so distinctive to Batman to merit copyright as an intrinsic part of the literary character. As this blog noted earlier, the appellate decision that prompted this high court appeal was a surprise because it extended copyright where it never had gone before — to a car and its design. In September, the U.S. Ninth Circuit Court of Appeals ruled that the Batmobile was protected and that auto designer Mark Towle infringed DC Comic’s copyrights by creating and selling replicas of the comic vehicles. Towle and his lawyers argue that the appellate judges erred in protecting the Batmobile. They say a car does not posses the requisites for copyright as a “literary character.” Key questions The petitioners pose three questions-arguments to the justices: Whether a court may judicially create a subject of copyright that was specifically and expressly excluded by Congress as such when Congress enacted The Copyright Act, thus circumventing the clear mandate of Congress and...

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