Website
Crooks:
Rights of Publicity
&
Intellectual
Property (IP)
As a Grammy
Award Winning Producer, Engineer, and Songwriter, one day I received a call
from a colleague informing me that someone was using my likeness on their
website to generate business for his company. I would not have an issue with
this, if the person would have simply asked and worked out some type of license
agreement from derived income.
The question:
Can I sue
someone for using my photo and likeness as a means of exploitation for pecuniary
gain on their website?
The answer is
YES! A person cannot use your image
or likeness without prior written authorization or a granted license for
financial gain. According to Brett J. Trout, author of Cyber
law: A Legal Arsenal for Online Business, “The right of publicity protects
the commercial interest in one’s persona, name, and likeness and, in some
jurisdictions, one’s nickname, voice, mannerisms, characterizations, and
performing style (Page 78).” According to Attorney Daniel A. Hetzel,
“an individual’s Right of Publicity is derived from the First and Fourth Constitutional
Laws versus the copyright law. However, it can have implications from copyright
and trademark infringement to the extent copyrighted music and trademark logos
are utilized. State laws have supplemented this constitutional right.”
I read in the
Boston Globe, Michael Jackson’s Estate sued Howard Mann, Vintage Pop Media
Group, LLC, alleging “Mann and the site are using Jackson's likeness
improperly, including images from the film This Is It and five sketches
the singer drew.” The website, Jackson’s
Secret Vault, is selling a book written by the singer's mother, Katherine,
and has released music attributed to the late pop superstar.
(Courtesy ofJacksonSecretVault.com)
Mann was the
person who purchased “Michael Jackson family’s storage vault held at a Federal
Bankruptcy Court. The storage unit contained various memorabilia of Michael
Jackson. In April 2011, the defendants’ motion to dismiss the case was denied by
the United
States District Court Central District of California (Case No. 11-00584 DDP
(PJWx).” The case is still pending.
Lindsay Lohan’s
lawsuit against Pit Bull, Neyo, and Afro Jack is another recent instance of
right of publicity. First, let me start by stating; Lindsay definitely has some
level of brand equity to her attribution. The song entitled “Give Me
Everything” was a 2011 summer smash. Currently, It is still being played on
major radio stations and has over 169 million hits on YouTube. Personally, I
don’t believe its damaging to her persona. Her pre-existing actions of
drinking, partying, drug use, and violating probation take precedence over
Pitbull’s recital of her name, “Locked up like Lindsay Lohan.” It’s simply a
metaphor. It would be a different situation if the hook of the song were called
“Lindsay Lohan.” She may have a case at that point. Pitbull could, actually,
change the lyrics to say, “Locked up like Akon,” and he would still have the
same hit record. Nevertheless, I can look on both sides of the coin to see
validity.
Regarding
copyright infringement, many people believe the song entitled “Barbara
Streisand” by Duck Sauce is a completely original piece of work.
Night Train, Written by Hallo and Bimmelbahn
Boney M. "Gotta Go Home"
Written by Hallo and Bimmelbahn
However, according
to the RIAA, “the use of any part of a song requires a license. So, if you
perform, reproduce or distribute clips, you should contact the sound recording
copyright owner for a license (RIAA).” Most beatmakers and samplers believe they can use any sample within
0-30 seconds of an original work. Simply, not true. Additional, recent rulings,
such at the Napster’s
Copyright Infringement Case, have set precedence towards setting
injunctions towards copyright violator’s whether they are on Internet or not.
A word of caution to the mashables and samplers, the copyright police
are out and collecting on copyright infringers!
References:
BostonGlobe.com.
(January, 2011). Michael Jackson’s estate sues over website. Retrieved from http://www.boston.com/ae/music/articles/2011/01/20/michael_jacksons_estate_sues_over_website/
Hetzel, Attorney Dan Hetzel. (October, 2011).
Retrieved from http://www.baughdaltonlaw.com/attorneys/dHetzel.php
Jackson, Michael
(October, 2011). Michael Jackson’s This Is It. Retrieved from http://www.thisisitmovieondvd.com/
Michael Jacksons
Secret Vault. (October, 2011). Retrieved from http://www.jacksonsecretvault.com/
Recording
Industry Association of America (April, 2011). Clear Victory fo Recording
Industry in Napster Case: Ninthe Circuit
Rules in RIAA’a Favor on Every Legal Issue Presented. Retrieved from http://www.riaa.com/newsitem.php?content_selector=newsandviews&news_month_filter=2&news_year_filter=2001&id=EA742466-C6DB-1D28-CF94-411172C649C7&searchterms=sampling%20&terminclude=&termexact=
RoseSpeaks.com (October,
2011). http://www.rosespeaks.com/wp-content/uploads/downloads/2011/04/4-19-2011-Court-Order-Denying-Mann-Motion-Dismiss.pdf
Trout, Brett J. (2007). A Legal Arsenal for
Online Business. © Published by World Audience, Inc New York, New York.
