The Right of Publicity

The Right of Publicity is the right that individuals have to control the use of their name and likeness in a commercial setting. For example, you cannot put a picture of someone on your brand of pickles without their permission. The right of publicity is typically exploited by celebrities who earn large fees for endorsing products. However, even ordinary folks possess this right in most states.  Since there is no federal statute concerning this right, the extent of the right can vary from state to state. 

The Right of Publicity is similar to the appropriation form of invasion of privacy. The principal difference is that the right of publicity seeks to ensure that a person is compensated for the commercial value of his name or likeness, while the right of privacy seeks to remedy any hurt feelings or embarrassment that a person may suffer from such publicity.

Celebrities may have difficulty proving invasion of privacy, because they do not seek solitude and privacy. How can a celebrity claim that the unauthorized use of his likeness on a product embarrassed and humiliated him at the same time that he appears in numerous commercials? By thrusting themselves into the public eye, celebrities waive much of their right of privacy. On the other hand, celebrities have an especially valuable property right in their name and likeness, for which they are often paid handsomely to endorse commercial products.

Under either a publicity or privacy theory, subjects can recover for some unconsented uses of their names and likenesses. A problem arises, however, when one person’s publicity/privacy rights come in conflict with another person’s free speech rights under the First Amendment. Suppose a newspaper publisher wants to put a picture of Cher on the front page of its paper. Is her permission required?

While Cher’s name and likeness is being used on a “product,” the newspaper, this product is also “protected expression.” Products such as books, movies and plays are forms of expression protected by the First Amendment. The First Amendment allows journalists to write about others without their consent. Otherwise, subjects could prevent any critical reporting of their activities. When one person’s right of publicity conflicts with another person’s rights under the First Amendment, the rights under the First Amendment are often, but not always, paramount.

So in the case of the use of the name or likeness of Elvis Presley on a coffee cup or T-shirt, there is no expression deserving protection. The seller of these products is not making a statement or expressing an opinion. The seller is simply trying to make a buck by exploiting the name and likeness of Elvis. Since there are no First Amendment rights needing protection in this instance,  the right of publicity may stop the unauthorized use of a subject’s name or likeness. Thus the law draws a distinction between products that contain protected expression and those that do not. Generally speaking, it is permitted to use, without consent, a person’s name or likeness in a play, book, magazine, newspaper, musical composition, audiovisual work, radio or television program, work of art, work of political or newsworthy value, or an advertisement or commercial announcement for any of these works.

Courts have struggled with the issue of whether the right of publicity descends to a person’s heirs. In other words, when a celebrity dies, does his estate inherit his right of publicity? Can the estate continue to control the use of the celebrity’s name or likeness, or can anyone use it without permission?

Some courts have held that the right of publicity is a personal right that does not descend. These courts consider the right similar to the right of privacy and the right to protect one’s reputation (defamation). When a person dies, heirs don’t inherit these rights. Suppose you were a descendent of Abraham Lincoln. An unscrupulous writer publishes a defamatory biography claiming Abe was a child molester. You couldn’t sue for defamation or invasion of privacy. Perhaps this is why many scandalous biographies are not published until the subject dies.

In California, courts initially held that the right of publicity was personal and did not descend to one's heirs. In 1984, however, the California legislature enacted the Celebrity Rights Act which changed the law. This statute,  presently found at Civil Code section 3344.1,   provides that the right of publicity descends and lasts for 70 years after the death of the person. A similar statute, known as the Astaire Celebrity Protection Act (California Civil Code section 3344), prohibits the unauthorized use of the name, voice, signature, photograph or likeness on or in products, merchandise or goods for those who are living.  Both statutes attempt to balance First Amendment rights against rights of publicity and privacy. 

The California Secretary of State is responsible for registration of claims by successors-in-interest of deceased personalities. Section 3344.1 permits any person claiming to be successor-in-interest to the rights of a deceased personality register their claim. The registry of successor-in-interest claims contains the celebrity name, date of death, the name and address of the claimant and the interest claimed. The filing can be done online at: http://www.sos.ca.gov/business/sf/sf_siisearch.htm

In other states, the right to publicity may descend. The rights of the heirs, however, may be outweighed by other people’s First Amendment rights. Because the Right of Publicity is a state-based right, as opposed to Federal right, its application can vary depending on which state's law applies. In many jurisdictions even if there is not a specific Right of Publicity statute, this right may be recognized by the courts. 

 Indiana appears to have the broadest Right of Publicity statute in the country,  providing recognition of the right for 100 years after death, and protecting not only the usual "name, image and likeness," but also signature, photograph, gestures, distinctive appearances, and mannerisms. However, many of  the cases concerning this right arise under New York or California law.

COPYRIGHT FORMS ADDED TO WEBSITE

More than 75 copyright forms and documents have been added to my website for free download as either a word or PDF  document.

These forms include forms and brochures that explain how to register your copyright whether it is a musical work, book, play or film.  There are also detailed explanations of the fair use doctrine, and the entire text of U.S. Copyright law.

Go to:  Entertainment Law Resources

  

Tintin a Hit

Congratulations to our client Moulinsart SA on the success of the movie version of its classic comic book series Tintin. We are pleased to have represented our client in negotiating an agreement with Dreamworks to produce this film.  

Steven Spielberg’s The Adventures of Tintin: The Secret of the Unicorn, was the number one offshore hit with a gross of $55.8 million from 5,620 screens in 19 markets. The movie is in 3 D and comes from Oscar winning director Steven Spielberg and Oscar winning producer Peter Jackson.

The Adventures of Tintin  is a series of classic comic books created by the Belgian writer  Georges Rémi (1907–1983), who wrote under the name of Herge. Tintin is a young Belgian reporter who is  aided in his adventures by his faithful fox terrier dog Snowy.  The series is one of the most successful European comics of the 20th century, with translations published in more than 80 languages. More than 350 million copies of the books have been sold to date. Tintin’s popularity has grown ever since its  first appearance in 1929.

The  3D animated feature stars an international cast that includes Jamie Bell (Billy Elliot, Defiance), Andy Serkis (Lord of the Rings, King Kong), Daniel Craig (James Bond, Cowboys and Aliens), and comedy duo Nick Frost and Simon Pegg (Shaun of the Dead, Hot Fuzz). Sony  is co-distributing abroad with Paramount. According to the Hollywood Reporter the film was No. 1 in 17 of Tintin’s opening markets with France leading the way ($21.5 million collected over five days from 935 spots), which Sony described as “the biggest opening ever for an original, non-sequel film from Hollywood.”

Additional information and trailer at:Tintin

CONDUCTING AN AUDIT

Many filmmakers sign complex distribution agreements that they do not fully understand. Several years ago I was approached by a filmmaker who seemed certain that his distributor was cheating him. His film had been licensed to HBO for a large fee, and significant revenue was generated from foreign sales. Nevertheless, very little revenue was paid to the filmmaker. He asked me to investigate, and to arrange for an audit.

I reviewed the distribution contract and the distributor’s producer reports. The agreement allowed the distributor to deduct virtually any expense, with no caps or limitations. The distributor was therefore able to deduct several hundred thousand dollars in expenses. The contract permitted the distributor to take 35% of gross receipts as a distribution fee. The balance remaining was split 50/50 with the filmmaker. This formula allowed the distributor to retain almost all the revenue without resorting to cheating or creative accounting. It was a terrible deal for the filmmaker. I asked him why he had agreed to these terms. He replied that the distribu­tor told him the terms offered were “standard.”

Of course, these terms are not standard, and a savvy filmmaker would never accept them. A distributor is usually allowed to recoup specified market and promotional expenses only, and the total amount of recoupable expenses may be capped. The distribution fee charged was excessive, and for the distributor to also share in the balance remaining on a film it did not provide any financing for is just outrageous. I told the filmmaker not to bother with an audit since it was unlikely it would make any difference. This was not creative accounting; it was an instance of a gullible filmmaker being taken advantage of by a more experienced distributor.

While creative accounting complaints are common, many films are not profitable by any measure, so the profit particip­ant will not bother to audit the books. For those films that do generate significant revenue, audits often recover more than their cost, which may be $20,000 to $30,000 or more.

An audit may reveal two types of errors. The first type are clerical mistakes. A studio accountant might make a mathematical error when adding numbers. For some mysterious reason, these errors usually favor the studio. When such errors are discovered, distributors usually make corrections without much protest.

The other type of error arises from contract interpretation. The philosophy prevalent at many studios is, “When in doubt, interpret it in our favor and we will fight it out later if someone objects.” Despite the great care taken by lawyers to draft straightforward contracts, new areas of ambiguity constantly arise. As a result, contracts have become increasingly detailed and long. Every time a lawyer thinks that his client has been taken advantage of, he tries to clarify matters in the next deal by being even more explicit. This is why signing a short-form contract may not be wise. A deal memo addresses the major issues without spelling out the details. The resulting ambiguity often does not favor the filmmaker because in a dispute the distributor can better afford the legal expense of contesting the point.

Excerpt taken from Mark Litwak’s Risky Business, 2^nd edition, 2009.

Mark Litwak's Interview on Filmnut Now Online

Mark Litwak was recently interviewed on the program Filmnut by host Jeff Schubert. The show is  distributed by www.thestream.tv

Click Here to watch

The show can also be subscribed to on iTunes and YouTube, and followed on Twitter.

CROWD RELEASE

When producers shoot a scene at a place open to the public people in the background might be captured on camera. It is often not practicable to get every member of the crowd to sign a release. Consequently, producers may post a sign at the entrances to the event alerting participants that they may be captured on screen and stating that by entering the venue they are consenting to be recorded. Alternatively, a release might be presented to persons when they purchase a ticket to an event and printed on the ticket as well.

Persons do not have an absolute legal right to prevent publication of any photo taken of them without their permission. If every person had such a right, no photo could be published of a street scene or a parade. Liability usually exists only if publication of a photo would be offensive to people of ordinary sensibilities, or is defamatory or invades their right of privacy. See, for example, Gill v. Hearst Publishing, 40 Cal. 2d 224 (1953). However, the use of a person's image or likeness without their permission to sell a product would likely infringe their right of publicity and give rise to liability.

If you are using a posted crowd release, it is good practice to take a photo of all the entrances with the sign clearly posted in public view. The notice should  be large enough that those passing by will clearly see it.

CROWD RELEASE

(Post outside of entry doors or on perimeter of filming area)

By entering and by your presence here, you consent to be photographed, filmed and/or otherwise recorded. Your entry constitutes your consent to such photography, filming and/or recording and to any use, in any and all media throughout the universe in  perpetuity, of your appearance, voice and name for any purpose whatsoever in connection with the production presently entitled:

____________________________________.

You understand that all photography, filming and/or recording will be done in reliance on this consent given by you by entering this area.

If you do not agree to the foregoing, please do not enter this area.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

3rd Edition, Contracts for the Film and Television Industry Coming Soon

Silman-James Press will soon be publishing a revised and updated edition of Mark  Litwak's Contracts for the Film and Television Industry. The second edition of this book was released in 1998. The new third edition will be expanded to 80 contracts and commentary. In addition to updated versions of the 62 contracts in the Second Edition, the new agreements to be published include the following contracts:

Website Content Provider Agreement, Guestbook Release, Talk Show Appearance Agreement, Certificate of Engagement, Synchronization License TV Series, Cable TV Production Agreement, Studio Rental Agreement, Internet Acquisition Distribution Agreement,  Website Content Provider Agreement, Video on Demand Agreement, and Theatrical Exhibition Agreement.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Mark Litwak to be Interviewed on Filmnut

Mark Litwak will be interviewed on the program Filmnut by host Jeff Schubert and  distributed by  TheStream.tv

The live interview will take place on Wednesday September 14th at 8pm PST and can be watched at:

http://www.thestream.tv

Viewers who wish to ask questions during the netcast can do so by posting questions on twitter on @thestreamdottv

The show can also be subscribed to on iTunes and YouTube, and followed on Twitter.

Eighteen People Indicted for 25 Million Dollar Indie Film Scam

Federal authorities have charged 18 people in a boiler room scam, accusing them of bilking investors out of millions of dollars, according to the U.S. Attorney's Office.  Federal authorities arrested a total of 12 defendants; three persons in Florida and nine people in Southern California. A former CIA agent who ran a Burbank movie company called Q Media Assets has already pleaded guilty to conspiracy, mail fraud, and tax charges in relation to the fraudulent boiler rooms.

From early 2004 to May 2009, the alleged scam solicited $25 million in investments for independent films through the use of fraudulent boiler room telemarketing operations. Cinamour Entertainment LLC and Q Media Assets LLC retained the services of telemarketers to cold-call individuals, asking them to invest in various indie film projects. By way of fraudulent pitches and false promises, these entertainment companies were able to collect millions from their victims. The targets of this scam were the elderly according to Assistant U.S. Attorney Stephen Cazares, because “they are at home and they pick up the phone.”

According to the government, the boiler room operations promised investors up to 1,000 percent returns and maintained that 93 percent of investor money would be used to produce and promote the films. The telemarketers ultimately misrepresented to investors how their money would be spent, including the telemarketers’ failure to disclose that they would receive commission. Some of the investors were even promised movie credits. Despite these promises, in reality, some of the indie films for which money was solicited were never produced. According to Cazares, “The misrepresentations were enticing. Part of the attraction was the aura of movie-making and Hollywood.”

 According to the U.S. Attorney’s office, in June of 2011, a federal grand jury returned two indictments against eighteen individuals for these fraudulent boiler room telemarketing operations. The first indictment concerned Cinamour’s activities. Cinamour raised over $15 million from 450 investors for the indie film, From Mexico with Love, but only $5 million of the investments were actually used to produce and promote the film. Cinamour further collected $2.7 million for Red Water, which was never even made into a film. The second indictment concerns Q Media’s  activities, which included raising $5 million from 250 investors for Eye of the Dolphin (now called Beneath the Blue) and $4 million for its sequel, Way of the Dolphin,  which went straight to home video. Little of the funds raised were used to produce these indie films, instead nearly 1/3 of the investment money alone went directly into the pockets of the telemarketers.  

Ultimately, Cinamour was charged with 45-counts of illegal activity, including mail fraud, wire fraud, sale of unregistered securities, money laundering, conspiracy, and tax evasion. Q Media’s 33-count indictment similarly charged defendants with these crimes. The charged individuals could face serious jail time if found guilty of the allegations.  Conspiracy, the sale of unregistered securities, and tax evasion each carry a maximum of five years in federal prison. Money laundering, wire fraud, and mail fraud carry even harsher prison sentences. If convicted of money laundering, the individuals could face up to ten years in prison and if found guilty of mail and wire fraud, they could be in federal prison for a maximum of twenty years.


U.S Attorney Press Release

My Article on Protecting Investors

Sundance Announces Online Distribution Opportunities for Sundance Institute Films

iTunes, Amazon Instant Video, Hulu, Netflix, SundanceNOW and YouTube to Participate, with New Video as Exclusive Aggregation Partner.

Keri Putnam, Executive Director of the non-profit Sundance Institute, announced an expansion of the Institute’s Artist Services program, which enables Sundance Institute artists to reach audiences, raise funding and receive support through an  educational and resources site.

Filmmakers can now make their films available online to consumer markets via iTunes, Amazon, Hulu, Netflix, SundanceNOW, and YouTube while still retaining ownership of their work and making independent decisions about strategies for each outlet. Each partner will identify and promote these film projects to their audiences, while in turn, the Institute will endorse their availability through its own marketing and promotional efforts and through the vast social community developed by the Institute.

New Video, the Institute’s exclusive aggregation partner for distribution across these portals, will offer all eligible Sundance Film Festival and Lab titles a unique gateway to digital distribution that emphasizes filmmaker ownership and control.

In addition, the Institute has also entered into a deal with Topspin Media to provide its artists with direct marketing tools and fulfillment services. Topspin is a direct marketing and retail software platform for musicians, filmmakers and authors that provides tools for independent artists to increase awareness of their work and build relationships with fans.

Among the first films and filmmakers to use these services will be two selections from the 2011 Sundance Film Festival: Connected: An Autoblogography about Love, Death & Technology by director Tiffany Shlain, which premiered in the U.S. Documentary Competition section and On the Ice, by director Andrew Okpeaha MacLean, which premiered in the U.S. Narrative Competition section.

read the release

Awarded Top Blog Honor

CourtReporter.net

Clip from Dallas Seminar, Selling Your Film Internationally

The Hangover II: Tyson Tattoo Copyright Infringement Suit

Just weeks before the release of the much anticipated sequel to the highest grossing comedy of all time, The Hangover, tattoo artist S. Victor Whitmill filed a copyright infringement lawsuit against Warner Brothers. Whitmill alleged that the facial tattoo worn by actor Ed Helms in The Hangover II, which duplicated the tattoo Whitmill designed for boxing champ Mike Tyson, infringed on his copyright in the tattoo. Specifically, Whitmill sought a preliminary injunction, which if granted, would have halted the film’s long awaited Memorial Day weekend release.

When determining whether or not to grant an injunction, a judge considers the likelihood of the claim succeeding at trial while simultaneously evaluating the hardships that would result if the injunction were granted. Luckily for Hangover fans everywhere, Judge Catherine D. Perry, the U.S. District Court Judge presiding over The Hangover II copyright suit, denied Whitmill’s motion for a preliminary injunction. Judge Perry concluded that the harm it would cause to both Warner Bros. and third parties were simply too great. At the time Whitmill sought to enjoin the film’s release, Warner Bros. had already spent nearly $80 million on promoting the film and it had released prints of the film to over 3,700 theaters across the country. If The Hangover II’s release was halted, these theaters which had been promoting the film and selling advanced tickets would have lost millions of dollars. Further, Warner Bros. would likely sustain additional monetary losses because it would have been exposed to damage claims by these thousands of theaters across the country.

Despite Judge Perry’s decision to deny the preliminary injunction, Warner Bros. was not entirely off the hook. . Whitmill additionally sought a permanent injunction for what he alleged was “reckless copyright infringement," which if granted, would prevent further distribution of the film, including its DVD release. Judge Perry allowed this copyright infringement claim to go forward and indicated in her court opinion that there was a strong likelihood that the powerhouse production studio could be liable for copyright infringement in its recreation of Tyson’s tattoo without first obtaining Whitmill’s permission or consent.

However, the outcome of this case may not be as clear cut as Judge Perry’s opinion would lead one to  believe. The question of how far a copyright holder’s rights extend in artwork that is on someone else’s body is unclear. . Up until this point, there have been only a handful of copyright suits involving tattoos, all of which were settled out of court. Thus, there is little legal precedent that can be used to determine the outcome of this lawsuit.  Clearly artwork, even in the form of a tattoo, can be protected under copyright law. On the other hand,

Whitmill’s argument that he owns the rights to the tattoo on Tyson’s body was two-fold. First, Whitmill’s alleged that Tyson signed a tattoo release form prior to getting the tattoo, which indicated that “all artwork, sketches and drawings related to my tattoo and any photographs of my tattoo are property of Paradox-Studio Dermagraphics [Whitmill’s business].” Further, Whitmill provided the court with a copy of his copyright registration of the tattoo that went into effect on April 19, 2011.

 Warner Bros. contended that even if Whitmill owned a copyright to the tattoo, it had a legal right to reproduce the tattoo in The Hangover II under the fair use doctrine.  The fair use doctrine is an exception to the exclusive rights granted by copyright law which allows for limited use of copyrighted artwork without first obtaining permission from the original creator. This doctrine has been used as a defense to claims of copyright infringement in a variety of cases, including when someone recreates work owned by another rights holder in order to parody it. Warner Bros. argued that the tattoo on Helm’s face in The Hangover II was used to parody Tyson, who makes a personal appearance in the film. To successfully invoke the fair use defense, a four factor test must be satisfied. As indicated by the U.S. Copyright Office, these four factors include: “(1) the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes (2) the nature of the copyrighted work (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole (4) the effect of the use upon the potential market for, or value of, the copyrighted work.” 

Judge Perry characterized Warner Bros. fair use argument as “silly.” She found that “there was no parody” and the use of “the entire tattoo in its original form, not in parody form” was a blatant copyright infringement. Since Judge Perry presided only over the issue of whether the film’s initial Memorial Day weekend release could be halted, her court opinion was not the final word on the case. Instead, her decision served as a green light for Whitmill’s claim against Warner Bros. to go forward to trial.

However, before reaching trial, Warner Bros. and Whitmill “amicably” settled the copyright infringement lawsuit during a mediation session. Details of the settlement have not been released. What we do know is that The Hangover II’s DVD release will not be halted and, to the delight of Hangover fans everywhere, the Tyson tattoo on Helms’ face in the film will be there to stay.

U.S. Copyright Office on Fair Use

Findlaw


Written with assistance from  law student Elizabeth Schechtman.

The Right of Privacy

Filmmakers are often uncertain how far they can go when shooting documentaries, without invading the privacy of others. Generally speaking, persons caught on camera in a public place do not have a legal right to preclude others from photographing them. But a lot depends on how their photo is used, and whether it is newsworthy. If the photo is being used on a product, like pickles, you will need to secure a depiction release. But the same photo appearing in a newspaper would not provide grounds for a successful suit for invasion of privacy. 

The United States Constitution does not mention a right of privacy. According to the United States Supreme Court, however, such a right is implicit in the Constitution and the Bill of Rights. The right of privacy has been defined as the right to live one’s life in seclusion, without being subjected to unwarranted and undesired publicity. In other words, it is the right to be left alone. 

Like defamation, the right of privacy is subject to constitutional restrictions. The news media, for example, is not liable for defamatory statements that are newsworthy unless they are made with knowing or reckless disregard of the truth (i.e., actual malice). Unlike defamation, a cause of action for invasion of privacy does not require any injury to one’s reputation. 

Suppose you were in your backyard sunbathing in the nude--your backyard is surrounded by a solid wood fence preventing passersby from seeing you. Suddenly a photographer for The National Enquirer hops over the fence and snaps your picture. Soon the photograph is displayed in newspaper tabloids near supermarket checkout stands across the nation. Can you sue for defamation?

No, because you were sunbathing in the nude and truth is an absolute defense to defamation. Could you sue for invasion of privacy? Yes. You have a reasonable expectation of privacy in your enclosed backyard.

Suppose you were sunbathing in the nude on your front porch, in open public view. Could you bring a successful action for invasion of privacy? No, because you do not have a reasonable expectation of privacy under these circumstances. Thus, whether an intrusion into your privacy will be actionable depends on whether you have a reasonable expectation of privacy. 

Many defenses to defamation apply to invasion of privacy. But truth is not a defense. Revealing matters of public record cannot be the basis for an invasion of privacy action because the information is already public. Express and implied consent are valid defenses. If you voluntarily reveal private facts to others, you cannot recover for invasion of your privacy. 

Privacy actions typically fall into four factual patterns.

Intrusion into One’s Private Affairs

This category includes such activities as wiretapping and unreasonable surveillance. The intrusion must be highly offensive. Whether an intrusion is highly offensive depends on the circumstances. Most people would find it offensive to discover a voyeur peering through their bedroom window. On the other hand, a salesman knocking on your front door at dinnertime may be obnoxious, but will not be sufficiently offensive to state a cause of action. 

Public Disclosure of Embarrassing Private Facts

One who gives publicity to a matter concerning the private life of another is subject to liability for invasion of privacy, if the matter publicized is of a kind that:

a)  would be highly offensive to a reasonable person, and

b) is not of legitimate concern to the public. In other words, it is not newsworthy.

An example of this type of invasion of privacy would occur if someone publicizes embarrassing derogatory information on another person, publicizes it and the information is not of legitimate interest to the public.

Appropriation

An action for appropriation of another’s name or likeness is similar to action for invasion of one’s right of publicity. The former action seeks to compensate the plaintiff for the emotional distress, embarrassment and hurt feelings that may arise from the use of one’s name or likeness on a product. The latter action seeks to compensate the plaintiff for the commercial value arising from the exploitation of one’s name and likeness.

As with the right of publicity, a person cannot always control the use of his name and likeness by another. While you can prevent someone from putting your face on their pancake mix, you cannot stop Time magazine from putting your face on its cover. Thus the use of someone’s name or likeness as part of a newsworthy incident would not be actionable. 

False Light

Publicity placing a plaintiff in a false light will be actionable if the portrayal is highly offensive. This type of invasion of privacy is similar to defamation but harm to reputation is not required. An example of false light invasion of privacy could entail a political dirty trick such as placing the name of a prominent Republican on a list of Democratic contributors. Although this person’s reputation may not be harmed, he has been shown in a false light.

CLIENT CORNER

NTSF:SD:SUV

Congratulations to our client producer Jon Stern on completion of his first TV season of the outrageous comedy National Terrorism Strike Force: San Diego: Sport Utility Vehicle (NTSF: SD:SUV).

 The series is produced for Cartoon Network’s Adult Swim (Turner Broadcasting) and is a parody of the numerous police procedurals on network television. 

The series features Paul Scheer, Rob Riggle, Brandon Johnson and June Raphael among others. Trailer at: http://www.youtube.com/watch?v=XKylO_zfGIs

Forks Over Knives

Brian's Wendel's documentary Forks Over Knives will be theatrically released beginning with  a 19 city roll out on  May 6, 2011. The feature film examines the claim that most, if not all, of the degenerative diseases that afflict us can be controlled, or even reversed, by rejecting our present
menu of animal-based and processed foods.

Forks Over Knives (FOK) will play at Landmark, Regal and AMC theaters, among others. 

An advance screening in Portland, Oregon generated $42,000 over five weeks at Regal Fox Tower theater. The film was featured on the CNN.com: http://eatocracy.cnn.com/2011/03/03/vegan-on-the-silver-screen; The film was also featured on Oprah.com: http://www.oprah.com/oprahshow/Diet-Power-Video;

Information on the film and the trailer are available at http://www.forksoverknives.com. 

Last Fast Ride

Last Fast Ride will be shown at the Newport Beach Film Festival on May 1, 2011.  The film produced by Shannon Factor and directed by Lilly Scourtis Ayers premiered at Slamdance. This documentary is about Marian Anderson,a  controversial and influential punk rock lead singer and songwriter who died at the age of 33 from a heroin overdose.
 

Through a combination of concert footage, photographs, and interviews with key people in Marian's life, director Lilly Ayers pieces together the portrait of a fragmented and damaged girl who was left to fend for herself in a world of danger and exploitation. Narrated by punk rock legend and actor Henry Rollins, this riveting film covers Marian's idyllic youth, her tormented adolescence, and her tragic adult life, climaxing in an unforgettable ending.  

The film will screen at the Triangle Square, theater 1, 1870 Harbor Blvd., Costa Mesa, CA 92627 at 8:00 PM Sunday, May 1, 2011. http://lastfastridefilm.com/

Jimi Hendrix Right of Publicity Suit

The Right of Publicity is the right that individuals have to control the use of their name and likeness in a commercial setting. You cannot put a picture of Cher on your brand of pickles without her permission. Everyone has a  right of publicity but it is particularly valuable for celebrities who  can earn large fees from endorsing products. 

The right is determined under  state law. Each state applies its own laws, and the states provide varying treatment on a number of issues. For example, the states decide whether this right is inherited by one's heirs or is a personal right, that dies with the celebrity. 

California courts first held that the right of publicity was personal and did not descend. In 1984, however, the California legislature changed the law. The legislators enacted Civil Code section 990 which provides that the right of publicity descends for products, merchandise and goods, but does not descend for books, plays, television and movies. A similar statute, California Civil Code section 3344 prohibits the unauthorized use of the name and likeness of living persons on products, except for news  and public affairs uses. . Both statutes attempt to balance First Amendment rights of journalists and business people against rights of publicity of celebrities and their heirs.

Generally, the state law that applies is the law where the celebrity was domiciled when he or she dies.  The state of Washington, however, attempted to expand its rights of publicity so that it would cover even those who did not reside in Washington when they died. 

That Washington law, the Washington Personality Rights Act (“WPRA”),  was reviewed in a recent decision  regarding Jimi Hendrix’s estate's right of publicity. A federal judge in  ruled that WPRA), violated the U.S. Constitution.  The court concluded that applying this law regardless of the law of the domicile of the individual at the time of death was arbitrary and unconstitutional.  

WPRA was initially passed in 1998 after a prior decision concluded that Hendrix' publicity rights didn't descend to his father and sole heir, Al Hendrix, since Jimi Hendrix didn't reside in Washington at the time of his death. The law applied retroactively. 

The suit was brought by Experience Hendrix, L.L.C. which owns several songs written by Jimi Hendrix and various federally registered trademarks incorporating Hendrix’s name, image, and song titles.   They sued defendant Hendrixlicensing.com, a seller of Jimi Hendrix merchandise, and sought to enjoin it from using various song titles and lyrics and use of his name and likeness. 

Even though the plaintiff did not allege any claims under WPRA, the court reviewed it because the essence of plaintiff’s allegation was that Hendrix’s right of publicity did not expire upon his death. Under New York law, where Hendrix was domiciled at the time of his death, the right of publicity did not survive his death.

The Defendant argued successfully that such a choice-of-law directive violated the Full Faith and Credit Clause and Due Process Clause of the United States Constitution.

The court also found the law arbitrary because applying it would result in uncertainty regarding the ownership and existence of a right of publicity because it applies only in Washington, and that almost all states except Indiana have determined that the law of the person’s domicile should apply.

The decision can be read at: CASE 

Note that this decision could be reversed by a higher court.