News & Analysis

Senate Circulates Draft of Digital Replica Bill

October 12, 2023 4:05 pm
A draft of a digital replica bill to address concerns over AI-generated performances and sound recordings has just been made public, along with a related one-pager. This follows in the wake of the Senate's July hearing on copyright and AI.  I previously submitted comments to the Senate after...

Submission to Congress in Wake of AI Concerns

October 2, 2023 3:02 pm
house right of publicity name image likeness rights digital replica
In July at a Senate hearing about Artificial Intelligence and Intellectual Property, several Senators and witnesses floated the possibility of adopting a new federal right of publicity or a more limited "digital impersonation" or digital replica law.  In light of these calls and the seriousness with which they...

Federal Right of Publicity Takes Center Stage in Senate Hearing on AI

July 27, 2023 11:40 pm
Ghostwriter 977 drake weekend heart on sleeve ai generated song right of publicity issues
On July 12th, the Senate Judiciary Committee’s Subcommittee on Intellectual Property held its second hearing about artificial intelligence (AI) and intellectual property, this one was to focus expressly on “copyright” law. Although copyright was mentioned many times during the almost two-hour session and written testimony considered whether the...

Supreme Court Sides with Jack Daniel’s in Trademark Case

June 8, 2023 7:36 pm
Bad Spaniel Jack Daniels bottle trademark false endorsement publicity case
Today's Supreme Court decision in Jack Daniel’s Properties, Inc. v. VIP Products, 599 U.S. __ (2023), will influence not only trademark cases to come, but also false endorsement and right of publicity cases. As you may already know, the case involved a dog toy that mocked the name...

Second Circuit Holds that Copyright Law Preempts Publicity Claims Against Sirius XM

November 9, 2022 1:03 am
right of publicity melendez stuttering john howard stern sirius xm
On October 4th, in Melendez v. Sirius XM Radio, Inc., the Second Circuit held that copyright law preempted a performer’s right of publicity claims arising out of Sirius XM’s rebroadcasting and promotion of past Howard Stern shows. The plaintiff, John Edward Melendez, also known as Stuttering John, was...

Cardi B Wins Jury Verdict against Tattooed Plaintiff

November 4, 2022 9:00 pm
On October 21st, in Brophy v. Almanzar, a jury sided with recording artist Cardi B (aka Belcalis Alamanzar) and rejected a lawsuit brought against her by Kevin Michael Brophy. The dispute arose out of the use of Brophy’s tattoo as a starting point for the cover art of...

Louisiana’s Allen Toussaint Legacy Act Heads to Governor’s Desk

June 7, 2022 3:01 pm
Allen Toussaint piano publicity bill
After several years of trying, the Allen Toussaint Legacy Act has now passed both chambers of the Louisiana legislature and was sent yesterday to the Governor for signature. The Act, SB426, is named after the famed New Orleans musician, songwriter, and producer, Allen Toussaint who died in 2015....

“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
elster trademark registration 1052(c) bar trump too small shirts
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...