News & Commentary

“Navigating the Identity Thicket” Out in the Harvard Law Review

March 14, 2022 9:16 pm
Rothman right of publicity identity thicket
My new article, Navigating the Identity Thicket: Trademark's Lost Theory of Personality, the Right of Publicity, and Preemption, is now out in the Harvard Law Review In the Article, I shine a light on the problems created by overlapping and conflicting rights in a person's identity and suggest...

Federal Circuit Holds Bar on Registering “Trump Too Small” Violates First Amendment

February 27, 2022 3:15 pm
On Thursday, the Federal Circuit decided In re Elster and reversed the Trademark Trial and Appeal Board’s (TTAB) rejection of a trademark application by Steve Elster to register “Trump Too Small” on t-shirts and other apparel. An example of the relevant merchandise can be seen here. The examining...

Third Circuit Holds that Newscaster’s Right of Publicity Claim can Proceed against Facebook

September 29, 2021 3:19 pm
The Third Circuit in a 2-to-1 decision in Hepp v. Facebook has parted ways with the Ninth Circuit by holding that the Communications Decency Act § 230 (CDA § 230) allows right of publicity claims. This reversal of the district court allows the plaintiff Karen Hepp’s lawsuit to...

Toddlers’ Lawsuit Against Trump Tossed in Test of New York’s Expanded anti-SLAPP Law

July 22, 2021 2:48 am
Toddlers embracing
On July 9th, a New York trial court dismissed the high-profile lawsuit against Trump, Trump for President, Inc. (“TFP), and Lance Cook brought by the parents of two toddlers whose embrace was transformed from a meme of racial harmony into an edited video suggesting one of them was a “racist...

Dua Lipa Sued Over Posting Photo of Herself on Instagram

July 16, 2021 2:41 pm
Dua Lipa
Dua Lipa has been sued by Integral Images, Inc. in district court in California for posting a photo of herself on her Instagram feed.  This is yet another in a string of copyright lawsuits arising out of celebrities (like Khloe Kardashian & Tom Brady) posting images of themselves on social media when...

Sacha Baron Cohen Sues Over Unauthorized Ad Campaign

July 16, 2021 2:31 pm
Solar ad
Earlier this week, film and television actor Sacha Baron Cohen and his company, Please You Can Touch, sued Solar Therapeutics in district court in Massachusetts for the unauthorized use of his likeness, Borat character, and the character's catch-phrase in a billboard advertisement for a cannabis company.  The complaint sets forth...

Coca-Cola Wins Round II as California Appellate Court Reverses Massive Jury Award

July 9, 2021 10:17 pm
The California Court of Appeal for the Fourth District reversed an almost $10 million jury award against Coca-Cola in Hansen v. Coca-Cola Company in a recent unpublished decision. The dispute arises out of the Hansen’s sodas and juice brand (now owned by Coca-Cola) and a trust composed of...

Win for Free Speech and Docudramas in New York

June 30, 2021 7:25 pm
Last week a New York appellate court granted the defendant’s summary judgment motion in Porco v. Lifetime Entertainment Services, the long-running dispute over Lifetime’s ripped-from-the-headlines docudrama Romeo Killer: The Chris Porco Story, which first aired in 2013.  This decision reverses the trial’s court’s alarming rejection of the defendant's...

Mixed Victory for Jackson Estate in Tax Court

May 18, 2021 11:49 pm
michael jackson estate right of publicity right of privacy tax litigation irs tax court decision publicity name and likeness rights
On May 3rd, the U.S. Tax Court issued the long-awaited decision in the long-running litigation over the estate taxes owed by the Michael Jackson estate. In a sweeping 253-page opinion (with additional appendices) the Tax Court, clearly cognizant that this opinion will likely be read by many more...

New York Governor Signs New Postmortem Right of Publicity Bill

December 8, 2020 6:59 pm
New York Postmortem Right of Publicity Bill Signed Governor Cuomo
On November 30th, 2020, the Governor of New York signed into law a new postmortem provision which for the first time will add a postmortem right to the state's law, lasting 40 years after death. This new law also addresses the unlawful dissemination and publication of  "sexually explicit...