ENTERTAINMENT LAW
I. INTRODUCTION
a. Main issues affecting entertainment law
i. Art (creative)
ii. Business/Legal (documents, money, etc)
iii. Leverage (bargaining power) – affects the other two issues heavily
1. How bad does the company want your client?
2. Past success
3. Reputation – good or bad
4. Uniqueness
5. Who has legal rights, controls copyrights/publishing
6. How many offers, companies are you dealing with
7. Expectation of success
8. Contacts/relationship of the parties
b. Entertainment Contracts
i. Live long beyond any other contracts
1. Issues can come up well after the product has been created
2. They live as long as the products have value
3. Life of copyright – life of author plus 70 years
ii. New trend is to include internet (digital) sales as part of sales figures, as well as right for record label to sell the song digitally\
iii. Areas Affecting Entertainment Contracts
1. Innovation
a. Need flexibility w/ regard to future tech. (i.e. HDTV, DVD)
b. “Right to release on any medium now known or to be discovered, by any means whatsoever”
2. Consolidation – Major record labels
3. Internationalization – Look to worldwide sales
4. Inflation/Economics – Broader means/areas of commercial exploitation, economics of the consumer
5. Censorship
II. RIGHT OF PUBLICITY & PRIVACY
a. Right of Privacy
i. Original area of protection
ii. Prosser’s 4 categories
1. first 3 involve protecting individuals from mental harm flowing from exposure, personal invasion
2. 4th – protects a proprietary/monetary interest in privacy
a. “Use of name or image in an identifiable manner, without consent, wrongdoer invades privacy”
b. Only the person injured has that right, and it is not assignable.
b. Right of Publicity
i. Right of individual to profit from his own proprietary interest in his identity
ii. Compensates for the theft of the goodwill of a celebrity’s name
iii. “Appropriation of the π’s identity for commercial purposes”
c. Rationale:
i. Protects commercial exploitation of a celebrity’s proprietary interest in their marketable image
ii. guards against unjust enrichment
iii. promotes creativity by offering financial incentive to develop persona
d. State laws determine extent of right & descendibility
i. NY – §50/51 – statutory – part of right of privacy, not descendible, so celebrity need not exploit it to have right
ii. GA (CA/TN) – common law/distinct from right of privacy (MLK), descendible, must exploit during lifetime to survive
e. ELEMENTS OF A CLAIM
i. Must prove:
1. An entitlement to a right of publicity, i.e. that you have a protectible interest in identity because you have a famous public persona
2. Use of that right for commercial exploitation.
ii. Defenses:
1. 1st amendment – The content of an expressive work that bears any relationship to the use of a celebrity’s name is protected by 1st amendment, as long as the item is a literary work and not simply a disguised commercial advertisement for the sale of goods.
a. Newsworthy event
b. Parody – Hustler v. Falwell – was a spoof on morality, and despite being offensive, it was constitutionally protected as parody.
2. Public figure
3. Incidental Use – No liability for incidental use in some courts, CA included. Permits use of photo, video, etc of a person as a definable group as long as they are not singled out.
a. Ex – group scene with famous person in it, but out of focus or something.
4. Work of Fiction – doesn’t really apply to π, fact intensive, must prove.
5. Transformative work
6. Express or Implied Consent – π gave it in some fashion, possibly by actions alone
a. i.e. actors in a movie can’t complain about advertisements, merchandise for that movie
f. Use of person’s first name in work of fiction – Springer v. Viking Press (NY) – Author uses friend from college as basis for character – uses her 1st name. Held: Use of 1st name alone doesn’t rise to level of similarity necessary. Must be so closely akin that reader, knowing person, would have no difficulty distinguishing the 2.
g. No exclusive right to own life story – Rosemont Ent. v. Random House (NY) – Howard Hughes doesn’t want writer to publish biography of him, so he assigns the exclusive rights to his life story to his own corporation. Held: General public has legitimate interest in his life, and by being a public figure he has no exclusive rights. “The publication of a biography is clearly outside the “commercial use” contemplated by the “right of publicity” and such right can have no application to the publication of factual material which is constitutionally protected.”
h. Consent to use of photos
i. Written consent is required – Brinkley v. Casablancas – Christie Brinkley had selected photos for use with an HBO special, but never gave written consent to use those photographs for a poster that was not related to the HBO special. Court gave her an injunction.
ii. Consent is final – Shields v. Gross – Brooke Sheilds’s mom gave written consent for Brooke to have nude photos taken of her when she was 10. Once Brooke was 18, she tried to prevent future use of those photos, unsuccessfully.
i. Likeness of celebrity
i. Onassis v. Christian Dior – Ad had various photos, one looked strikingly similar to Onassis, who never gave consent. Held: Look-alike model is equivalent of photo of celeb if gives impression that it is intended person
ii. Ali v. Playgirl – Magazine contained a painting of a nude black boxer was opposite a poem entitled “The Greatest”. Court granted injunction for Ali, because the painting was a recognizable likeness of him.
1. Editorial content and not explicitly for advertising purposes, but it was still found to violate right of publicity, because no sufficient connection between the editorial content and the offending portrait.
j. 1st Amendment Defenses/ Newsworthy Events
i. Use of P’s photo in magazine article – Stephano v. News Group – Male model only agreed to have his photo of him in jacket used in September issue of NY Magazine. A year later, the same photo was used for another purpose, and he claimed it violated his right of publicity. Held: In the 2nd instance, the jacket that π was wearing was a “newsworthy observation” not for trade purposes, and was talking about fashion in a general sense.
ii. Fictitious use of P’s likeness – Spahn v. Messner (NY) – D publishes fictional biography of P, a baseball star, and portrays him as a war hero. Held: P is a public figure, and cannot prevent newsworthy events being written about him, but fictitious reporting of newsworthy persons is an unauthorized exploitation of his personality for purposes of trade.
iii. Appropriation of the commercial product as newsworthy event – Zacchini v. Scripps – Π was a circus performer who did the flying cannonball. TV reporter filmed π’s entire act without his permission, and showed it on the news. Held: π’s appearance at the fair and his performance could be reported by the press as a newsworthy item, and a 10 second clip would be OK, b/c that enhances the attractiveness of the commercial product. But this is appropriation of the very activity by which the
ntifies good or product
i. Trademarks permit consumers to identify the source of goods or services, and rely on their prior experience and make meaningful choices among competing products/services.
b. Service Mark – applies to entertainment services, including groups
i. Registering service mark
1. Federal Registration:
a. Using CD as specimen is bad, b/c record company owns it.
b. Better to use live concert advertisement
ii. Service mark must indicate and distinguish a service
1. Ray Boom Boom Mancini – Tries to register his name as providing services. His specimen was newspaper article, which only identified him as individual, not his services.
2. Carson – Specimen is an ad w/ his name on it, in reference to services
iii. Band name as trademark & service mark – i.e. Rolling Stones used on goods as well as to identify their services
c. Lanham Act §43 – False designation of origin (unfair competition)
i. Likelihood of Confusion – “likelihood that an appreciable number of ordinarily prudent purchasers are likely to be misled, or simply confused, as to the source, sponsorship or affiliation of the Δ’s goods or services.
ii. Spectrum of Distinctiveness
1. Generic
2. Descriptive – Needs 2ndary meaning to get protection. If it quickly conveys an immediate idea of ingredients, qualities or characteristics of the goods.
3. Suggestive – Automatic protection – Requires imagination, thought and perception to reach a conclusion as to the nature of the goods.
4. Aribtrary/Fanciful- Common word used in an unfamiliar way. No link between the word and the product or services
d. Defenses
i. Likelihood of confusion vs. public interest
1. Elvis Presley v. Russen – D started a TV show that featured Elvis impersonators, after Elvis died. P claims trademark/service mark infringement, unfair competition and false designation of origin. Held: Confusion of sponsorship, as to whether estate has endorsed show. Look to D’s intent (commercial?), strength of marks, similarity of marks, similarity of services, actual confusion. Balancing test leads court to deny injunction of show, only sale of records & photos w/ show.
2. Rogers v. Grimaldi – Foreign film entitled “Ginger & Fred”, which was about a foreign dance couple who were known as the Italian Ginger Rogers & Fred Astaire. Held: Lanham Act infringement applies only where public interest in avoiding confusion outweighs public interest in free expression.
ii. Advertising – Namath v. SI – D uses a photo of Namath from a cover in advertisement. Held: 1st amendment fair use, because representative of quality and content of magazine, not indicating endorsement of product by P
iii. Surveys – New Kids OTB v. News America – Newspaper uses their name in popularity poll. D wins because no suggestion of endorsement by P, no likelihood of confusion.
IV. REPRESENTING TALENT
