The 9th Circuit Court of Appeals made a most unfortunate ruling that trademark law and California's 'right of publicity' law "allows a celebrity to sue a greeting card company for using her image and catchphrase in a birthday card without her permission."
Read the original travesty here.
Fortunately, Hallmark greeting cards is not taking it lying down.
They have asked the entire 9th Circuit to re-hear the case en banc.
Read their compelling petition for rehearing here.
The Opinion holds that a right of publicity claim asserted by an iconic
celebrity, stemming from an expressive work that "spoofs" that celebrity and her
oft-repeated catchphrase, is not transformative or otherwise protected by the First Amendment. In his well-known dissent from denial of en banc review in White v. Samsung, the Chief Judge of this Court expressed grave concern about courts giving celebrities a "right to keep people from mocking them or their work." White, 975 F.2d at 1516. The Opinion does exactly that, in direct conflict with numerous decisions by this Court and others, and to the detriment of the fundamental right of free speech.
The Supreme Court has refused
to consider the case of whether or not fantasy sports leagues infringe on publicity rights of a sports league and/or the players.
Since an appeals court has already ruled that the First Amednment trumps so-called 'publicity rights' in this context, this news is no cause for alarm. However, it still would have been nice for the Supreme Court to take the case to put an exclamation point on that obvious conclusion.
This is rich. You remember John Dillinger? The famous Depression-era bank robber? More than 70-years after police shot him down in Chicago, his great-nephew is claiming
that he is owed royalties for the use of Dillinger's name and likeness. All thanks to a misuse of an already ridiculous Indiana 'publicity' law
[Jeffrey Scalf] says he has been ripped off by the author and publisher of a Dillinger biography, who refused to pay him licensing fees. He feels burned by restaurateurs who use the 1930s bank robber's name to hawk burgers and beer, and cheated by a California video-game company that used Dillinger's digital likeness in a game about gangsters.
And don't even get Scalf started on civic leaders and festival organizers who stage public events using the notorious thief's name and exploits -- but won't pay him to use the name. It's highway robbery, he says.
By day, Scalf is a marketing executive for the Indiana Pacers basketball team. At night, he is at his computer, searching the Internet for information about Dillinger -- and hunting down those who would either profit from or smear his memory.
Since 2001, Scalf has filed lawsuits or threatened legal action against those who blame his great-uncle for the police officer's killing, including cafe owners, museum organizers, historical societies and rural township officials. He has demanded that anyone using the name sign a waiver promising not to portray the bandit as vicious or mean-spirited.
"John did some bad things. He lived a tragic life," says Scalf. "But he was no killer."
That claim has drawn ridicule from most historians, and those targeted by Scalf say he is the one exploiting Dillinger -- for his own profit and personal glory.
"This isn't about preserving history," says author Dary Matera, whose publisher tangled with Scalf over "John Dillinger: The Life and Death of America's First Celebrity Criminal." "It's about control and money."
An Indiana law, known as a postmortem right of publicity, allows Scalf and other descendants the right to charge for, or prevent the use of, Dillinger's name, likeness, voice or personality, says Amy Wright, Scalf's attorney. In Indiana, such rights last 100 years after a person's death and cover, among other things, the deceased's signature, photograph, distinctive appearance and mannerisms.
After Dillinger's death, Scalf's grandmother held a majority portion of the rights, according to Wright, until she handed them over to her grandson in 1997. (She died in 2001.)
[Scalf] sued a computer game company in San Francisco. (They settled.) He fought with a Dillinger-themed restaurant in Hudson, Ind. (Its owner also settled.) He challenged a group of community boosters hosting a Dillinger Days festival in downtown Mason City, Iowa. (The town renamed the festival.)
That Scalf has turned to the law as a weapon to defend the legacy of a notorious criminal doesn't seem strange to him.
"John would have appreciated the irony," Scalf says. "Just because he broke the law doesn't mean other people can."
"There's a market in this," [Scalf] says.
There is indeed a market in this. Which proves just how sickening the 'right of publicity' legal scam truly is.
Read the whole story here, if you can dare stomach it.
Compare this case to what the 8th Circuit has recently ruled regarding the 'right of publicity'. (And yes - I continue to insist on always putting the phrase 'right of publicity' in quotes since it remains an illegitimate legal concept in my eyes. Hopefully the Dillinger case illustrates why I feel as such.)
Oh, and by the way, another federal court has already ruled that the Indiana 'publicity' law only applies to personalities who died after the law was first enacted in 1994. John Dilinger missed the boat by 60 years in this case.
The 8th Circuit Court Of Appeals has not only struck an important blow for free speech, but they may have also prevented the idea of "fantasy sports" from becoming a corporate monopoly.
As the court states: "[T]he information used in CBC's fantasy baseball games is all readily available in the public domain, and it would be strange law that a person would not have a first amendment right to use information that is available to everyone."
Indeed. But then again the radical interpretations of 'publicity' rights have been quite strange all along.
PDF link of the decision here.
[h/t: How Appealing]
First it was the deceased Marilyn Monroe
, now it is the alive and kicking Andy Griffith
The so-called 'right of publicity' has the potential to mutate into another form of speech-stifling monopoly. Glad to see that the courts are getting it right in these instances.
Andy Griffith's trademark claims were also appropriately shot down. If reasonable people were actually confused that the television star was running for office, then I'd reconsider.
A New York federal judge has ruled that Marilyn Monroe's right of publicity died when she did in 1962, paving the way for family members of the late photographer Sam Shaw to continue selling and licensing images of the icon, including the photo of her standing above a subway gate.
Complete story here.