THR, Esq. Entertainment & Media Law Blog

Both Genders Upset By Simon & Schuster's 'Hot Chicks With Douchebags'

By Eriq Gardner

Last month, publisher Simon & Schuster was sued by three women who claimed emotional distress, invasion of privacy and defamation after their photographs appeared in a book titled, "Hot Chicks With Douchebags."

We suppose the only thing worse than being a "hot chick" is being a "douchebag," so we're not surprised to see a man, Michael Minelli, stand up to make a similar claim against the book's publisher and author. The two lawsuits share neither jurisdiction nor a plaintiff's lawyer. This one was filed in Nevada district court and adds a libel claim, as Minelli says two pages of the book were devoted to him.

Retired Football Players Score Touchdown Over Royalties From Video Game

By Eriq Gardner

A San Francisco federal jury has ordered the National Football League Players Association to pay $28.1 million to 2,062 former NFL players as a result of breaching its fiduciary duty to the retired players and violating the terms of the players' group licensing agreements (GLE).

In contention were royalties derived from the EA football game "Madden NFL." The game included 143 vintage teams, according to Ronald Katz, a partner at Manatt, who is representing the retired players. "We are extremely gratified and pleased for the thousands of former NFL players--heroes, really, who built the game of pro football - who were betrayed by their union," Katz said.

Union lawyer Jeffrey Kessler says the verdict, including $21 million in punitive damages, was "unjust" and that it will be overturned on appeal.

This case dovetailed two contentious issues in the world of sports entertainment. First, the relationship between a union, whose bread-and-butter is the financial health of its current members, and former players. Second, value derived from licensing rights of publicity.

In the lawsuit, an e-mail from the union was exposed that instructed EA to “scramble” the images of retired players. The plaintiffs deemed this to be evidence that the union had intentionally broken obligations made in the GLE.

Hollywood Docket: CBS and ESPN Accused of Bad Intentions

By Eriq Gardner

TV Land is as strange as the lawsuits it engenders. Here's a couple of new ones:

• An actress stand-in on CBS' hit "CSI" is suing the network, claiming it retaliated against her for complaining of sexual harassment on the set. In the complaint filed in Los Angeles Superior Court, Shanelle Renee Howard says that after three years of stand-in work on the show, producers cut her workload back more than 90 percent after she gave testimony to others pursuing a separate sexual harassment claim.

• A former boxer now serving prison time has filed a pro se lawsuit against ESPN Classic after the station rebroadcast his fight against Joe Frazier. The boxing match represented Frazier's last fight, but Floyd "Jumbo" Cummings says it violated his rights of publicity. He's seeking $50 million in damages and in what might be called either rambling or poetic, his self-penned complaint says:

"ESPN Classic, well knowing the said premises, but contriving and wrongfully and maliciously intending to injure and aggrieve me and to bring me into public notoriety and to destroy the comfort of my life and peace and tranquility of mind, and to thrust upon me, unsought, unwarranted and undesired publicity and notoriety, utterly obnoxious to me, and annihilate and destroy.."

'Hot Chicks' Don't Really Dig Simon & Schuster

By Eriq Gardner

Hard to believe that a major book publisher would put the photographs of three women in a book titled "Hot Chicks With Douchebags" without making sure to get permission.

But allegedly, Simon & Schuster never got consent from Yvette Gorzelany, Joanna Obiedzinski, and Paulina Pakos before publication. Now the three women are suing in New Jersey Superior Court claiming infliction of emotional distress, invasion of privacy, and defamation in a new lawsuit.

The women were photographed at a New Jersey club and the photographs were sold to the publisher. The complaint doesn't include details about the photographer, the purchase, and what attempts if any Simon & Schuster made to satisfy any obligation for consent.

Comedian's Humorless Battle Against 'Family Guy' Enters Eighth Year

By Eriq Gardner

Comedian and actor Art Metrano continues to hound "Family Guy" for ripping off his routines.

Metrano, who is best known for performing magic on "The Tonight Show" in the 1970s and later starring as Capt. Mauser in two "Police Academy" films, has made a habit of filing lawsuits in Los Angeles against makers of the animated show. In 2000, he sued Fox Broadcasting, only to withdraw his complaint. Last year, he sued 20th Century Fox for producing a spin-off film entitled "Stewie Griffin: The Untold Story," only to withdraw the complaint again in March. According to a document filed at the time, the two parties "initiated discussions potentially to resolve this matter."

Those negotiations apparently were fruitless as Metrano has refiled his $2 million lawsuit against 20th Century Fox yet again.

Metrano has a tough road ahead. Intellectual property has rarely protected comedians against joke theft. In fact, Metrano has attempted and failed to register his routine with the Copyright Office. (He's appealing.) And Metrano may wish to consult with Carol Burnett about how her legal squibble with "Family Guy" went.

Last year, TMZ posted a comparison between Metrano's routine and Stewie's vision of Jesus. Theft or parody? You be the judge.

Rockstars and Republicans Don't See Eye-to-Eye on Copyright Rules

By Eriq Gardner

The quadrennial event known as the presidential election serves two purposes: elect a leader of the free world and, with apologies to Neil Young, keep them from rockin' in the free world.

Over at Politico, Suz Redfearn has a very good story on how "cease-and-desist letters from musicians have rained down like confetti on Republicans over the years."

Redfearn analyzes whether copyright authority allows musicians such as Heart, Van Halen, and John Mellencamp to prevent their non-preferred politicians from using their songs as campaign music.

So, what's the answer?

Why You'll Be Seeing More of Marilyn Monroe

By Eriq Gardner

Was Marilyn Monroe a Californian or a New Yorker at the time of the death?

That question might seem trivial, but the answer seems to be worth $7 million per year.

Last week, a New York District Court ruled that Monroe was indeed a New Yorker at the time of her death. (Here's the decision.) The distinction is important because in October 2007, California amended its right of publicity statute to retroactively create a right that was deemed to have existed when Monroe died. Thus, if she died as a native of California, those who hold the late actress' rights of publicity can continue to enjoy a near monopoly over the lucrative licensing of Monroe photographs.

But in a lawsuit brought by the Shaw Family Archives against CMG Worldwide and Marilyn Monroe, LLC, U.S. District Court Judge Colleen McMahon didn't buy the defendants' contention that Monroe was Californian. Ironically, part of the decision is a result of the Monroe's estate's avoidance of inheritance tax in California.

It hasn't taken very long for the ramifications of the decision to be felt:

CBS Challenges NFL Players Association's Fighting Words on Licensing

By Eriq Gardner

The NFL Players Association is now being hit on two fronts.

The NFLPA is already being sued by a bunch of former players who are unhappy at the amount of licensing revenue they are getting for video games.

Now CBS Interactive claims in a lawsuit filed in Minnesota District Court that the NFLPA "continues to threaten CBS Interactive with litigation if CBS Interactive does not pay the Players Association nationwide license fees for the use of publicly available statistics. It has gone so far as to say that if CBS Interactive takes any action to challenge its right to the licensing fees, it will never again grant CBSSports.com rights necessary to operate fantasy games and will therefore put CBSSports.com out of the fantasy football business."

Here's the complaint.

CBS Interactive, represented by Michael Lindsay at Dorsey & Whitney, is seeking a declaratory judgment that a right of publicity is superceded by free speech and fair use and that the NFLPA is violating antitrust laws with its threats.

Many lawyers thought the issue was settled after the Eight Circuit Court of Appeals ruled that copyright law didn't protect names, nicknames, likenesses, signatures, pictures, playing records, and biographical data. The Supreme Court refused to hear a challenge from Major League Baseball. But now that the NFLPA is apparently agitating on this front and Jim Brown is also suing here, a long-shot fourth quarter comeback is being tried.

Jim Brown Runs To Court After Seeing Himself In Videogame

By Eriq Gardner

For those in sports and entertainment who didn't like the 8th U.S. Circuit Court decision that established that copyright law offers no protection over the names, nicknames, and likenesses of athletes (and perhaps a broader list of celebrities) in fantasy games, here might be an opportunity to respark the fight in a different circuit.

NFL Hall of Famer and actor Jim Brown has filed a lawsuit in New York claiming Sony and video game maker Electronic Arts are exploiting his likeness in a video game featuring a character who looks like him and wears his No. 32.

The legal issues involved seem to be quite similar to the MLB v. CBC case, which was turned down for review by the Supreme Court earlier in the year. Brown seeks unspecified damages and an injunction barring the companies from "taking a free ride on the trade value" of his fame.

Naked Cowboy of Times Square Has a Right To Privacy, Just Like Woody Allen

Posted by Eriq Gardner

It's hardly an exaggeration to say that these days, the Naked Cowboy is as much a tourist attraction in New York as the Statue of Liberty. That statement might seem a bit of a stretch, but keep in mind that you need to take a boat and pay lots of money to go see the Statue of Liberty, whereas the Naked Cowboy is centrally located, pretty much free to see, and mentioned in every tourist guidebook.

So why would the Cowboy would sue the maker of M&M's for $6 million after it posted a Times Square billboard that allegedly violated his right of publicity and right of privacy? We're not sure, but if Woody Allen can win a suit like this, so too can the Naked Cowboy.

In a ruling yesterday in what the New York District Court called "The Case of The Naked Cowboy versus The Blue M&M," the lawsuit against Mars Inc. can continue. The judge threw out the rights of publicity claim—Mars did not use the guy's actual name (Robert Burck), the name of his character, his voice, or his actual photograph—but it allowed the privacy and false advertising claims to be challenged, saying the ad may have intimated that the Cowboy endorsed M&M's.

Read the decision for its discussion of Woody Allen case law on the subject.

Speedy Settlements Seen for Actresses' Publicity Rights Suits

Posted by Matthew Heller

Attorneys for two actresses who filed publicity rights suits over the use of their photos in sexually explicit ads have told Backstage magazine that they expect the cases will be settled quickly.

The two plaintiffs are Brenda Song of Disney's "The Suite Life of Zack and Cody," whose headshot allegedly appeared in an LA Weekly ad for an escort service, and April Scott ("Entourage," "CSI: Miami"), who alleges a Las Vegas strip club illegally used her photo in an ad published in Las Vegas Weekly.

Both cases are set for initial court hearings this summer but Backstage quotes Song attorney Lawrence Steinberg of Buchalter Nemer in Los Angeles and Scott attorney Cyrus John Nownnejad of Cyrus and Cyrus in Beverly Hills as saying they expect quick out-of-court settlements.

Supreme Court Refuses Major League Baseball's Request To Examine Rights of Publicity

Posted by Eriq Gardner

The Supreme Court has turned down a request to hear a dispute over whether a fantasy baseball operator violated the intellectual property rights of Major League Baseball. The league claimed domain over names and statistics.

In turning down the appeal, the ruling by the 8th U.S. Circuit Court of Appeals in St. Louis stands, which established that copyright law offers no protection over the names, nicknames, likenesses, signatures, pictures, playing records, and biographical data of players from major sporting leagues.

The ruling holds some impact too for celebrities in the entertainment industry, who have zealously guarded likeness rights. Many legal experts believe this to be an important victory for free speech over "rights of publicity."

Stock Car Driver Slams Pixar 'Cars' Character

Posted by Eriq Gardner

Yellow number 95.

According to Oklahoma stock car driver Mark Brill, that number-color combination belongs to him in the racing world. Now he wants Disney to pay up after using it in Pixar's hit film "Cars." Brill has filed a lawsuit in Oklahoma district court that claims Disney misappropriated his likeness by providing its main character Lightning McQueen a figure resembling his vehicle.

Seems a bit of a stretch. The complaint makes no mention of any copyright or trademark registration. And federal courts have ruled that the sale of athlete names and statistics don't violate rights of publicity.

Nevertheless, Brill wants $10,000 for the infringement.

Paris Hilton Card 'Clearly a Spoof', Hallmark Argues

Posted by Matthew Heller

Hallmark Cards has urged the 9th U.S. Circuit Court of Appeals to swiftly dispose of a pesky publicity rights suit filed by Paris Hilton, arguing that a greeting card portraying the hotel heiress as a waitress is "clearly a spoof" and, in any case, is "transformative" under the fair use test of copyright law.

The suit reached the appeals court after U.S. District Judge Percy Anderson in January denied Hallmark's motion for an early dismissal under the free-speech protections of California's anti-SLAPP law. Anderson said a "more fact-intensive analysis of the card's context and Hilton's public image" was required to determine whether the card is protected as a parody.

But Hallmark attorney Lincoln Bandlow of Spillane Shaeffer Aronoff Bandlow in Century City argues in this opening appellate brief that the exact literary form of the card is not relevant to whether it is sufficiently transformative of Hilton's likeness. "[T]he Card need not be biting, side-splittingly funny or obviously parodic to someone unfamiliar with Hilton to be protected under the transformative use test or the First Amendment," he says.

Actress Surprised to Find Her Photo Advertising Nevada Strip Club

Posted by Eriq Gardner

Actress April Scott's IMDb credits include a briefcase model on "Deal or No Deal," Girl in Bikini on "Entourage" and Daisy Duke in a direct-to-DVD prequel of "Dukes of Hazzard." Now Scott's uncredited turn as model for a Nevada strip club has prompted her to file a right-of-publicity lawsuit against Déjà Vu, Inc., which owns the Little Darlings Totally Nude Gentlemen's Club.

According to this complaint, filed Friday in Los Angeles Superior Court, the club used Scott's photograph in an advertisement without her permission. She claims the ad has caused her irreparable damage to her professional reputation and livelihood and is seeking $750 for each unauthorized use plus unspecified damages.

The exhibits attached to the complaint contain a copy of the ad, but it's dark and indecipherable. Perhaps court document reproduction quality is to blame. Or maybe not.

She's represented by Steven Sokoloff of Cyrus & Cyrus in Beverly Hills.

 

Will Lindsay Lohan Protect Celebrities Everywhere?

Posted by Eriq Gardner

The Above the Law blog runs an interesting guest column today by Marc Edelman about a potential lawsuit from Lindsay Lohan that could help clarify whether state laws guarding publicity rights protect celebrities from having their name and image abused in political-oriented advertisements.

The American Beverage Institute recently ran an advertisement in USA Today opposing the mandatory use of breathalyzers. Here's an image of the ad:

ABI Managing Director Sarah Longwell told MTV.com that she believes Lohan’s mug shot is fair game because it is already in the public domain. Lohan's lawyer was furious.

Meanwhile, the ABA said it planned to use the mug shots of other celebrities arrested for drunken driving in further campaigns.

Edelman doesn't think that Lohan has a claim under the Lanham Act, which among other features, prohibits advertising that creates confusion of an endorsement Instead, Edelman believes a case would be fought on state laws that prevent unauthorized use of one’s image for commercial gain. Well, duh.

California and many other states have aggressive right of publicity statutes to guard against unauthorized uses of celebrity likenesses. But because ABA is a trade organization, it may argue its ad is political speech, not commercial. The case involves enough grey area that Edelman writes, "Attorneys for both athletes and entertainers will be following these developments closely."

HBO Drama Incurs Wrath of Hell's Angels Founder

Posted by Eriq Gardner

HBO might have a biker-sized problem on its hands with a potential new series, "1%."

According to a lawsuit filed yesterday in federal court in Los Angeles by famed Hells Angels founder Sonny Barger, the script, concept and elements in the show were developed with his collaboration. However, the complaint contends that HBO, the White Mountain Company, and writer/producer Michael Tolkin cut him out of the project and violated many of his publicity rights when he demanded changes so as not to dilute his own brand.

HBO announced the pilot, set in the world of biker gangs, back in October (the "1%" title is a reference to a tattoo used by biker gang members to symbolize life on the fringe of American society). Barger now says he first optioned his bestselling autobiography to 20th Century Fox for movie development. Fox then hired Tolkin (Robert Altman's "The Player") to write the script. Barger claims he shared with Tolkin some of the other fiction projects he had been working on. Together, the two pitched HBO on a new series, and eventually HBO turned to Tolkin to create it.

DirecTV Asked How to Say 'Not Funny' In Russian

Posted by Eriq Gardner

Some of the most memorable commercials in the past few years have been the series of the DirecTV spots that spoof films like "Misery," "Major League," and "Star Trek" by overdubbing dialogue about DirecTV programming in place of the actual movie dialogue.

You'd think a company that does that sort of thing would be supersensitive about intellectual property rights. But one comedian, Evgeni Petrosyan (left), is calling foul. In a lawsuit filed in U.S. District Court in New York, Petrosyan claims that DirecTV spots that promoted its Russian-language programming violated his publicity rights.

Petrosyan, who compares his fame in the complaint to Robin Williams, Billy Crystal, Woody Allen and Jerry Seinfeld, wants more than $10 million for this breach. No joke.