Sunday, April 30, 2006
Friday, April 28, 2006
Athlete Obtains Preliminary Injuction Against Custom Swimwear Manufacturer for Unauthorized Use of Image
South African Olympic champion Richard Schoeman entered into an agreement with custom swimwear manufacturer Agon Sports to allow his photograph to be used in its 2004 catalogue. Agon, however, used the photo in its 2005 catalogue, whereupon Schoeman's attorney asked Agon to desist from further use of Schoeman's image. Schoeman sued under New York Civil Rights Law [sections] 50 and 51 claiming violation of his right of privacy.
According to the court, "In order to establish liability for invasion of the right to privacy under New York's Civil Rights Law, the Plaintiff must demonstrate four elements; to wit: the defendant (1) used the plaintiff's picture for advertising or trade purposes (2) within New York (3) without Plaintiff's consent and (4) there was a direct and substantial connection between the appearance of plaintiff's name or likeness and the main purpose and subject of the work....The purpose of using Schoeman's picture was indisputably for advertising or trade. Schoeman, an Olympic gold and silver medalist swimmer, is well recognized within the international swimming community as a result of his great success and prowess in his sport. Defendant's catalogue is a publication used for the sole purpose of selling swimming apparel. Agon has admitted using Plaintiff's picture in its 2005 catalogue. Thus, Plaintiff's picture was directly and substantially used to increase sales of Agon's swimming apparel and, ultimately, generate profits. The fact that the product being sold is swimming apparel and that Plaintiff is a world renowned swimmer establishes that there is a direct and substantial connection between the use of Plaintiff's picture and the main purpose of the work....Civil Rights Law §§ 50 and 51 apply to any use of a person's picture or likeness for advertising or trade purposes whenever the Defendant has not obtained the person's written consent to do so. It would, therefore, apply in cases where the plaintiff generally seeks publicity, for commercial purposes but has not given written consent for a particular use....Schoenman, who has consciously sought to establish publicity value for his persona and likeness cannot be exploited by Agon without his consent or due compensation....It is undisputed that Plaintiff did not give Defendant consent to use his image or likeness in the Agon 2005 catalogue. Originally, in 2003, he did give his consent for the 2004 catalogue but nothing more. Plaintiff's consent expired in 2004. On or about February 14, 2005, Plaintiff's attorney sent a letter to Jennifer Escalas of Agon, demanding that Defendant cease and desist from any further use of his image in any manner whatsoever. Thus, it was patently clear to Agon that Plaintiff did not consent to Defendant's continued use of his image beyond the 2004 catalogue....The use of Plaintiff's picture was not "incidental" or "isolated". Schoeman's picture was directly related to the purpose of the catalogue. Even after written demand was made to cease and desist its unauthorized use, Agon used Plaintiff's picture for the purpose of selling its sports apparel. Therefore, under Civil Rights Law §§ 50 and 51, Schoeman has demonstrated a likelihood of success on the merits of the case."
However, the court limited the scope of the injunction. "It is undisputed that Schoeman's identity was impermissibly misappropriated for the purposes of trade and advertising. Therefore, he has suffered harm. However, the relief cannot be as broad as he seeks. Advertisements that have already been published are not subject to recall as a form of relief based on a violation of Civil Rights Law §51....Agon has already distributed the 2005 catalogues with Schoeman's picture in it. The recall of all of the catalogues distributed, many of which have been delivered to private residences, would be nearly impossible. Directing and enforcing a recall and retraction will place an unacceptable financial burden on Defendant, especially where Plaintiff can be fully compensated monetarily. Therefore, this branch of injunctive relief, seeking the recall of the 2005 Agon catalogue, must be denied. With respect to Agon's prospective use of Schoeman's picture, an injunction barring its further use must be granted....To allow Agon to continue to use Schoeman's picture in the future would violate his right to privacy. There can be no doubt but that as a world class athlete, Schoeman has a limited amount of the time in which he will remain an elite competitor and in the public eye. Thus, he has an absolute right to determine how to best exploit his talent and renown. Neither Agon nor anyone else should be permitted to deprive Schoeman of this well-earned right...."
"In the face of Agon's admitted knowledge that Schoeman withdrew his consent to the use of his image and likeness, it seems unlikely that the injunctive relief granted herein will be found to be improvident. However, since establishing an undertaking is mandatory to prevent an injunction from being voidable...the Court sets an undertaking in the sum of $1,000. "
Read the entire ruling here.
Dan Tench and his colleagues from the London branch of Olswang have cracked Mr. Justice Smith's code, imbedded in the "Da Vinci Code" ruling handed down earlier this month. It's only fitting--Tench was the attorney who first paid serious attention to the strange font scattered throughout Smith's decision. What does the deciphered message say? "Jackie Fisher who are you Dreadnought." What does it signify? Possibly that if you look hard enough that you can find meaning anywhere.
Little, Brown is withdrawing copies of Kaavya Viswanathan's book How Opal Mehta Got Kissed, Got Wild and Got a Life from sale. The author has admitted reading author Megan McCafferty's novels several times and has explained how she wrote her own novel. Her publisher indicated it will not sue her for breach of contract, but said nothing about the additional book she was signed to write. Dreamworks had acquired film rights for HOMGKGWGAL. Perhaps it should approach McCafferty instead? Her new novel, Charmed Thirds, will hit one of the NYT Fiction Best Seller lists at number 30 on May 7th.
Canadian Government Bans Media From Covering Ceremonies Honoring War Dead; Who Made Decision Unclear
The Canadian media haven't been invited to cover ceremonies honoring the six citizens killed so far in the fighting abroad, but it's unclear who in the government made the decision to ban press and television. Some suggest the idea came from the Prime Minister's Director of Communications Sandra Harper, but she denies it. Officials say the ban protects the families' privacy. Critics say it limits the public's exposure to controversial photos of returning coffins. Read more in the Globe and Mail here.
Thursday, April 27, 2006
The judge who handed down the ruling in the "Da Vinci Code" litigation has left behind some code of his own, according to reporters who have since studied the opinion. First to be clued in was a New York Times reporter. Next on the trail was Dan Tench, a UK media lawyer, who noticed something weird about the judge's choice of font. The judge confirms that digging deeper is a good idea. Beyond that, 'tis still a puzzlement.
[Cross posted to The Seamless Web].
The Senate Judiciary Committee is holding hearings on the contentious issue of digital downloading. Some members of Congress have told members of the industry to come to a consensus about royalty payments for such downloads before Congress does it for them.
Actress Sharon Stone has won her defamation suit against England's Daily Mail. The paper had printed a story in which it alleged that she had dined with a "mystery male companion" while her small son was left behind in her car. Stone denied the allegations. The newspaper has withdrawn the story, is paying the actress' court costs and an unnamed amount in damages, which Stone will donate to a charity. Read more here and here.
Wednesday, April 26, 2006
The Screen Actors Guild, the Writers Guild of America West and the Directors Guild of America have reached agreements over compensation and benefits for cell phone broadcasts of portions of the ABC hit "Lost". Who would be entitled to profits from such products has been a source of much discussion over the past few months. Read more here.
Crown Publishing, which published Sloppy Firsts and Second Helpings, the novels Harvard undergrad and novelist phenom Kaavya Viswanathan is alleged to have copied, says it doesn't believe she did so unintentionally. A spokesperson for the publishing house says the similarities between Viswanathan's novel How Opal Mehta Got Kissed, Got Wild, and Got a Life, published by Little, Brown, and the two earlier books by Megan McCafferty are too numerous to be explained as accidental. Little, Brown says it stands by the younger author and plans to give Viswanathan time to rewrite her novel, after which it will re-issue the revised version. Read more here. Meanwhile, Harvard has announced it will investigate the issue.
Tuesday, April 25, 2006
One of the hot topics being discussed at the National Association of Broadcasters Convention this year is how local affiliates can continue to hold local viewership, compete for advertising dollars, and avoid the specter of FCC fines. The networks are moving quickly to offer their products to the Internet and other outlets. Affiliates would like to share in the profits likely to accrue from those deals. Meanwhile, those locals who agree to broadcast network products find themselves open to the prospect of paying fines imposed by an FCC angry over indecent or lewd behavior or speech. One solution is to impose a broadcast delay. Read more here.
Monday, April 24, 2006
In Bell v. Shah, Joel Bell and Bell Management alleged that Jonathan Givony, "a writer for a website entitled "Draftcity.com"...directed false and defamatory accusations against them on the Website on several occasions. Defendant has moved to dismiss...under Rule 12(b)(2)...for lack of personal jurisdiction...I agree...."
"Plaintiffs contend that the court has personal jurisdiction over the defendant under Connecticut's long-arm statute because he was a partner in a de facto Connecticut partnership--DraftCity.com--that transacted business in this state....The plaintiffs' submissions, viewed fully and most favorably to them, are insufficient to sustain their burden of smowing that the defendant has transacted business in Connecticut....Maintaining a website does not constitute transacting business under the long-arm statute unless the website specifically targets COnnecticut consumers, which is not alleged here.
"Plaintiffs contend that the court has personal jurisdiction...under another section of the long-arm statute...which applies to a person who "uses a computer...". Defendant did not use a computer in Connecticut--he only sent emails to Shah, some of which were read on Shah's Connecticut computer. And his use of the Website, which was accessible by computer in Connecticut, does not constitute use of a computer network....If the legislature had meant "internet" instead of "computer network" it would have said so...."
Read the court's entire ruling here.
Sunday, April 23, 2006
The CIA has fired a senior analyst, identified as Mary O. McCarthy, allegedly for leaking information to Dana Priest of the Washington Post, about secret prisons abroad that hold or have held suspected terrorists. (See another story from Reuters here.) The firing has re-ignited accusations that the Bush Administration is attempting to silence media critics, this time from within by preventing disaffected members of the bureaucracy from talking to the press. Meanwhile, Priest won a Pulitzer Prize last week for her reporting. Did McCarthy go to the press rather than use internal means to object to policies with which she disagreed? Were such effective means available to her? Is what she did (if she did it) whistleblowing or treason? The blogosphere is already out in force discussing the question. Does all this mean there is a new meaning for "McCarthyism"?
Friday, April 21, 2006
The California Supreme Court has remanded, with instructions to dismiss, a lawsuit against Warner Brothers Television by a former employee on the set of the "Friends" television show who asserted that "the writers' use of sexually coarse and vulgar language and conduct, including the recounting of their own sexual experiences, constituted harassment based on sex within the meaning of the Fair Employment and Housing Act...". Amaani Lyle had charged that she was fired not because her work was subpar, but because she was female. The Court found, however, that "[b]ased on the totality of the undisputed circumstances, particularly the fact that the Friends production was a creative workplace focused on generating scripts for an adult-oriented comedy show featuring sexual themes, we find no reasonable trier of fact could conclude such language constituted harassment directed at plaintiff because of her sex within the meaning of the FEHA. Furthermore, to the extent triable issues of fact exist as to whether certain comments were made about women other than plaintiff because of their sex, we find no reasonable trier of fact could conclude these particular comments were sever enough or sufficiently pervasive to create a work environment that was hostile or abusive to plaintiff in violation of the FEHA."
Warner Brothers had also raised a First Amendment defense, but because the Court resolved the issue on the grounds noted above, it did not address the First Amendment question.
Read the Court's entire opinion here.
Thursday, April 20, 2006
The FCC has begun an investigation into allegations of pay for play at Clear Channel Communications, CBS Radio, Entercom Communications, and Citadel Broadcasting, after it was unable to reach agreements with the four over fines for their previous practices. The agency has now sent out letters of inquiry, requests for documents that begin the process of formal investigation. The federal process follows on the heels of New York Attorney General Eliot Spitzer's lawsuit against Entercom. Read more here and here.
[Thanks to Craig Aaron for the heads up.]
Claiming that classified documents are somewhere in there, the FBI has requested access to the late Jack Anderson's personal papers. The family has refused. The documents are enroute to the George Washington University and will be eventually be accessible to the public. The government says it is concerned that secret information might then also be accessible to the public, according to FBI spokesperson Bill Carter. Read more here in a CNN account and in Washington Post article. It's unclear how, or whether, the government intends to proceed.
John Lott , the author of More Guns, Less Crime has sued Steven Levitt over statements Levitt made in Freakonomics, the book he wrote with Steven Dubner, as well as an email that Levitt sent last year in which Lott claims Levitt defamed him. Lott's complaint cites this passage from Freakonomics as an example of the type of defamatory statements made in the book concerning Lott and his research: "Then there was the troubling allegation that Lott actually invented some of the survey data that supports his more guns/less crime theory. Regardless of whether the data were faked, Lott's admittedly intriguing hypothesis doesn't seem to be true. When other scholars have tried to replicate his results, they found that right-to-carry laws simply don't bring down crime."
The email of which Lott complains occurred during the following exchange. John McCall, a Texas economist, emailed Levitt concerning the question of replication of Lott's research, saying (according to the complaint):
"... "You also state that others have tried to replicate [Lott's] research and have failed. Please supply me with appropriate citations so that I might check for myself." In a subsequent e-mail, McCall referred to a special issue of The Journal of Law & Economics..., which contains a collection of scholarly articles, including one by Lott...an article that also addresses right-to-carry laws....After discussion with the editors, Lott raised the funds to pay the journal's printing and mailing costs....In his e-mail, McCall stated as follows; I went to the website you recommended--have not gone after the round table proceedings yet--I also found the following citations--have not read any of them yet, but it appears they all replicate Lott's research. The Journal of Law and Economics is not chopped liver....
"Levitt responded by e-mail that same day and stated as follows: It was not a peer referred edition of the Journal. For $15,000 he was able to buy an issue and put in only work that supported him. My best friend was the editor and was outraged the press let Lott do this....
"The foregoing allegations are false and defamatory. The Special Issue was, in fact, peer reviewed. Levitt knew it was peer reviewed because Lott asked to contribute an article and told him that the papers would be peer reviewed....Levitt's statement that "For $15,000 [Lott] was able to buy an issue and put in only work that supported him" is also false and defamatory. Lott did not "buy" the issue not did he "put in only work that supported him"..."
Wednesday, April 19, 2006
Christopher S. Reed, Franklin Pierce Law Center, has published "A Trade Dress Approach to the Protection of Radio Brands" in IDEA: The Intellectual Property Law Review. Here is the abstract.
Over the past ten to fifteen years the radio industry has undergone dramatic changes in terms of both programming and the economic model that underlies the industry’s very existence. Despite the widespread industry consolidation that took place after the passage of the Telecommunications Act of 1996, advances in technological innovation have lead to a diversity of new media options that have changed the way that people consume radio programming and the way advertisers reach their target audiences. Broadcasters have responded by creating niche-oriented formats designed to attract more narrowly defined segments of the listening population. As the programming becomes more complex, and secondary markets in the packaging and licensing of such formats begin to develop, there has become a need to articulate a mechanism by which broadcasters may protect radio formats as intellectual assets.
While conventional intellectual property concepts are sufficient to protect various aspects of a radio format, broadcasters have traditionally had difficulty asserting protection for complete formats. This paper articulates a theory by which broadcasters may assert protection on a complete, sufficiently distinctive format. By conceptualizing the role of a radio station as a player in a two-sided market, using programming as merely a mechanism to secure listeners of a specifically defined demographic profile, then “selling” access to those listeners to advertisers, it becomes possible to consider the station’s format as its trade dress, best categorized as a tertium quid, the phantom third category of trade dress (in addition to product packaging and product design) raised by Justice Scalia in Wal-Mart Stores v. Samara Brothers. Using conventional trademark and trade dress principles, this paper then argues that a radio station’s format is analogous to the interior motif of a restaurant or retail store and, provided the format can meet the threshold requirements, should be entitled to protection.
Download the entire paper from SSRN here.
The Advertising Standards Authority has ordered all printed advertisements stopped for ThePool.com, because it has received at least one complaint that such ads target under 18-year-olds. According to the ASA, "ASA Chairman, Lord Borrie QC, has taken the unusual step of exercising his powers to have the ad withdrawn from circulation pending the outcome of the investigation. The advertising code allows the ASA to take interim action and have ads amended or withdrawn pending investigation if it appears necessary to avoid harm."