Right to Publicity? When Can a Celebrity or Public Figure Sue?

Hello:

It has been a while since I posted on this blog. I have been extremely busy working, writing, and speaking on Intellectual Property issues in New Media. No excuse for neglecting this space, but I hope to post here more often.

I have been writing quite a few articles for Black Web 2.0 and recently I wrote an article on the Right to Privacy and Right to Publicity Law. Specifically, I discussed how this law affects bloggers who feature and write about celebrities. Below is the article in full text. Also, please visit www.blackweb20.com to see more articles I have written about legal issues in new media.


50 Cent Sues WorldStarHipHop For Unlawfully Using His Image. Bloggers Take Note!

Rapper 50 Cent is suing the popular website WorldStarHipHop.com for using his image/likeness without his permission. Basically, the website used the rapper’s photo on its home page…like a banner. 50 cent claims the site’s use of his image resulted in increased traffic for the site and the public perception that 50 cent was affiliated with site due to his image prominently placed on WorldStarHipHop.com’s home page.

Do blogs, websites, or online magazines have to get permission to use every celebrity’s image or likeness before posting images of that celebrity? Well it depends on for what purpose the site uses the celebrity’s image.

The use of one’s image or likeness is covered under the Right to Publicity law. This law drives from the Right to Privacy. There are four basic Rights to Privacy:

1. Protection from unreasonable intrusion upon the seclusion of another. For example a home or a car,

2. Protection from appropriation of a person’s name or likeness (Right to Publicity). For example using a person’s name or image on a product or service without their permission,

3. Protection from publication of private facts. For example, income tax data, family quarrels, medical treatment, school records, etc.,

4. Protection from publication of information that places a person in a false light.
Prosser, Restatement 2nd of Torts.

The Right to Publicity is triggered where commercial speech is involved, i.e, when a company has used a celebrity’s “name, likeness, or voice” in connection with a product, thereby creating a false and misleading impression that the celebrity is endorsing the product. See, e.g., Eastwood v. Super. Ct., 149 Cal. App. 3d 409, 417 (1983).

In 50 cent case, he claims WorldStarHipHop.com used his image like a banner ad, therefore created the false impression that he was affiliated with the site. The use of his image resulted in increased traffic to the site and therefore increased ad dollars. If 50 cents claims are proven to be true, WorldStarHipHop.com will have to compensate 50 cents for using his image to endorse their product, i.e., their website.

But there are instances when a website can use a celebrity’s image without their permission. Under the First Amendment exception to the Right of Publicity rule, if the image is used in connection with reporting a newsworthy article that is a matter of public interest, then the site does not have to get the celebrity’s permission to use their image or likeness. Gionfriddo v. Major League Baseball, 94 Cal. App. 4th 400, 409 (2001); see also Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F.Supp.2d 1146, 1182-83 (C.D. Cal. 2002).

For example, when a gossip blog reports breaking news that X celebrity was in an altercation or was caught drinking and driving, use of the celebrity’s image without their permission is permissible. However, if a gossip blog simply has images of celebrities on its site as a banner or as part of the site’s graphics, use of the celebrity’s image is not permissible without first obtaining the permission of the celebrity. In this instance, the site is using the celebrity’s image to promote their blog or site.

Bloggers and websites that report on celebrity news should take note and be very careful when using celebrity images. If the use of the celebrity’s image is not associated with breaking news or “newsworthy”, ALWAYS get permission.

Update: New FTC Rules on Blogger Product Endorsements, Effective December 1

Hello!

Previously I wrote a post about the "proposed" Federal Trade Commission Rules on Blogger Product Endorsements. Basically, the FTC was considering whether to require bloggers to disclose any financial relationship between themselves and brands whom products they endorse.

Well those proposed rules are now a reality. The FTC has established new rules on Blogger Product endorsement and they are as follows:

1. Bloggers must disclose if they receive a financial benefit when writing a post about a product or service. FTC views this transaction as an endorsement of the product or service.

2. Disclosure can be a banner or part of the review.

3. Diclosure must be clear and direct.

4. If there is no disclosure, FTC may send a Cease and Desist. If Cease and Desist is violated or ignored, then blogger can receive a 11K fine.

5. Rules go into effect December 1.

Although, the rules have been established, the FTC has admitted that they will not actively pursue bloggers. Most likely, the FTC will only pursue clear rampant violations and those will most likely be the result of a tip from a concerned consumer. Hopefully the new rules will encourage bloggers to be as transparent as possible regarding product reviews. Transparency allows consumers to make informed buying decisions.

I welcome your feedback!

Facebook's New Privacy Policy: What does it mean for users?

Hello:

Previously I wrote a blog post about the importance of having a privacy policy if you own or maintain a website (blog, social network, etc.)

I discussed the need of website to state clearly: what information is collected from users; reveal what type of technology is used to collect information; explain to users what is done with the information collected; give users the option to opt out of providing information; and reveal measures in place to protect users' personal information.

Facebook recently revealed the company modified its privacy policy to require API Developers (3rd party application developers) to inform users in advance of what categories of data is needed to use the application. In addition, when users authorize an application, they can opt out of giving certain information. This change comes on the heels of Canada's Privacy Commissioner's concern about the "over-sharing of personal information with third-party developers of Facebook applications such as games and quizzes."

In my opinion this is a good move. Although the option to download third party applications is a user's choice, giving user's the ability to opt out of giving detailed personal information while still using the application, will possibly encourage more users to use the applications. Also the new policies give user's more detailed information about what information is required before downloading the applications. Now user's can make a more informed choice.

I welcome your thoughts!

Inventor's Association of Georgia and Cloud Computing

Hello:


I hope your life has been well! I have been busy busy busy. Last Saturday I gave a presentation on Trademarks and the importance of protecting them at the Inventor's Association of Georgia's monthly meeting. Despite technical difficulties with my MAC Ibook G4, the presentation went well. I gave examples of different types trademarks; discussed the difference between patents, trademarks, and copyrights; discussed cost effective solutions in defending and initiating trademark infringement actions; and gave advice on how to establish a cost effective trademark patrolling program.

Also I have been writing weekly for BlackWeb2.0. Last week, I wrote an article on privacy issues with Cloud Computing. Check it out and let me know what you think.

Until next time.

Update: RIAA File-Sharing Litigation: Obama Administration Backs RIAA

Hello!

I am finally back! I have been traveling for the past few weeks giving presentations and writing articles.

Previously I wrote a post about the RIAA vs. Tenenbaum case. This case is one of several high profile file-sharing lawsuits currently being reviewed by the courts.

Another case that has garnered national attention is the RIAA vs. Thomas-Rasset. Ms. Thomas-Rasset purchased songs from I-tunes and shared them with peers. A Minnesota federal jury found her guilty of copyright infringement and the court ordered her to pay $80,000 for each of the 24 downloaded song she shared. Her jury verdict came to a whopping $1.92 million dollars. She is now seeking to vacate the judgment for being too excessive.

However, last week, the Obama Administration submitted arguments in favor of the jury verdict. The Justice Department argued that the jury verdict was not too excessive considering the nature of file sharing. So although Ms. Thomas-Rasset may have shared the files with only a select group of individuals, those individuals continued to share the files with other users and so on. So the file sharing continues.

Clearly, The Obama Administration is intellectual property ownership friendly and is asserting its position as such. The RIAA really needs this support from the Justice Department considering the negative publicity and backlash it has received for going after individual consumers. It will be interesting to see if the judge actually reduced the monetary award. I will keep you posted.

I welcome your thoughts.

Twitter "Moldy Apartment" Libel Lawsuit

Hello Everyone!

I have been very busy traveling and speaking on protecting IP assets and legal issues in new media. This week I wrote an article on the Twitter "Moldy Apartment" lawsuit. If you have not heard, a Twitter user stated on Twitter that a management company had moldy apartments. The management company sued for libel and of course this story received massive attention. The issue here is whether the statement was factual or false. Read my take on this lawsuit here. If you like please join the discussion.

Have a great day!

Are News Stories Copyrighted Material?

Hello!

This week I wrote an article on whether news is copyrighted material. Specifically, can the Associated Press claim copyright protection for factual information? The article is posted here. Please leave a comment!