Tag: First Amendment
New York Once Again Floats Right of Publicity Law
The New York Assembly introduced yet another right of publicity bill last week, Assembly Bill A08155. Such legislation is introduced almost every year in New York―focused on trying to add a post-mortem right which currently does not exist under New York law. Thus far, these bills have all failed to proceed. This time may be...
Louisiana Right of Publicity Moves Forward
The proposed “Allen Toussaint Legacy Act” has passed another hurdle in the Louisiana legislature. The bill passed the House last week and was sent to the Senate Judiciary Committee yesterday. The Act is named after the famed New Orleans musician, songwriter and producer, who died in 2015. The proposed law provides individuals with a “property...
Warhol Foundation Claims Fair Use of Photographs of Dead Pop Star Prince
Oh, how the chickens come home to roost. In Comedy III v. Saderup, Inc., the California Supreme Court distinguished Andy Warhol’s celebrity portraits from those of Gary Saderup’s realistic portraits of The Three Stooges. Now this unconvincing and unpredictable distinction between Warhol’s celebrity portraits and those by other less famous, and more “realistic” artists is...
Copyright Law Blocks Student-Athlete Suit over Sale of Game Photos
Today, the Ninth Circuit held in Maloney v. T3 Media that former collegiate athletes’ right of publicity claims arising out of the licensing of their photos by T3 Media were barred by copyright law. The Ninth Circuit affirmed the district court opinion in the case. Unfortunately, rather than clarifying the district court’s muddled analysis, it...
Supreme Court Punts on O’Bannon v. NCAA
On Monday, the Supreme Court denied the petition for certiorari in O'Bannon v. NCAA, a Ninth Circuit decision from September 2015. The decision upheld the application of antitrust laws to the NCAA. The decision in O'Bannon rested in part on the conclusion that the use of the players' names and likenesses in videogames required licensing....
Student Athletes Lose Sixth Circuit Appeal in Marshall v. ESPN
Yesterday, the Sixth Circuit Court of Appeals issued a short opinion affirming a Tennesse district court's dismissal of claims by student-athletes. Lead plaintiff Javon Marshall (pictured above), a Vanderbilt football player, and other college football and basketball players filed a class-action complaint alleging that television broadcasts of their games by the defendants, including by ESPN,...
Julia Child Foundation Sues Airbnb for Using Her Name
I finally got my hands on the complaint that was filed a few weeks ago by the Julia Child Foundation in California Superior Court. The Foundation holds the rights to Julia Child's "intellectual property rights, including all rights of publicity." Julia Child is, of course, the famous "cooking teacher, author and television personality" who wrote...
Professors File Brief Supporting Review of O’Bannon and Fixing Right of Publicity Mess
Last week I filed an amicus brief co-authored by Eugene Volokh and signed on to by 28 Constitutional Law and Intellectual Property Law professors supporting the petition for certiorari in O'Bannon, and in particular calling for guidance on the conflict between the First Amendment and the right of publicity. As I have written, O'Bannon v....
NCAA Petitions Supreme Court to Protect Uses of Athletes’ Names & Likenesses
Last week, the NCAA filed a petition for certiorari with the Supreme Court in O'Bannon v. NCAA. The bulk of the petition seeks to overrule the Ninth Circuit's decision that the NCAA rules requiring amateurism violate the Sherman Act and antitrust law. Part of the petition also challenges the Ninth Circuit's "flawed intepretation of the...
Arkansas Resurrects Right of Publicity Bill
The Arkansas legislature has reintroduced a right of publicity bill in the state after last year's bill was vetoed by its governor. Governor Asa Hutchinson was concerned about the bill's limits on free speech. Arkansas to date has only recognized a common law right of privacy and the tort of appropriation, tracking the Restatement (Second)...