The Website Crook

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.