Archive by Author | skylaryoungartherlaw

Lindsey Lohan Heads to Court

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Lindsey Lohan can’t seem to escape the law, but this time she is heading back to the courtroom where she is the one pursuing the lawsuit. Lohan is suing the makers of Grand Theft Auto for using her “likeness” in the video game’s fifth installment. In her suit, she alleges that the creators based one of their characters, Lacey Jones, on Lohan, without gaining her permission. According to a Forbes article, Lohan stated that the creators incorporated her voice and image, by using Lohan’s fashion line, including similar hats, hairstyles, sunglasses, and jean shorts. The game’s minor character is described as a famous actress who complains about fame and reveals that she is anorexic (Lohan has admitted to having in an eating disorder in a past interview with Vanity Fair). It also features a hotel named the Gentry Manor, a hotel based on a real Los Angeles hotel where Lohan lived for a time.

Like Lohan, many celebrities, and even athletes, use right of publicity laws to prevent others from profiting on unauthorized uses of their names or likeness. In Re NCAA student-Athlete, a college football player sued EA for right of publicity and false endorsement under the Lanham Act for using his image, including his same height, weight, skin tone, hair color, home state, and play style (In Re NCAA Student-Athlete Name & Likeness Litigation 724 F.3d 1268 (9th Cir. 2013) In this case, the Ninth Circuit used a transformative test to see whether the avatar was sufficiently different to obtain 1st Amendment protection. This test, also used in the Third Circuit, looks to whether the new work added significant creative elements so as to be transformed into something more than the original work. The court held that the video game creators replicated the player’s likeness and in doing so, the company sought to “capitalize on the respective fan bases for the various teams and players” knowing that “consumers enjoy and, as a result, purchase more EA-produced videogames as a result of the heightened realism associated with actual players” (In Re NCAA at 1272).

Right of publicity laws were created to allow a person to control the use of his or her image, and generally, video games get a high level of protection because they are works of entertainment. In order for Lohan to prevail, she needs to prove that the Grand Theft Auto creators profited by clearly using her image in a non-parody way, without adding any form of expression. It seems to me that she will have trouble convincing the court that she has been blatantly exploited by the game’s creators.

-Skylar Young

Sources:

https://www.youtube.com/watch?v=za1l4ibHrsU

http://www.forbes.com/sites/erikkain/2014/07/03/lindsay-lohan-vs-rockstar-games-does-she-have-a-case-against-grand-theft-auto-v/

Zimmerman Falls Short in Defamation Claim

Race Debate Continues

The 2013 Zimmerman trial (State of Florida v. George Zimmerman) was without a doubt one of the most racially charged trials of this decade. Zimmerman’s acquittal led to thousands of protests across the United States, many of which broke out into dangerous riots. Many black leaders even demanded that authorities pursue a civil rights case against Zimmerman, including the NAACP, one of the largest black advocacy organizations in the nation.

According to a Pew study, 62 percent of white Americans thought the trial focused too much on race, while 72 percent of black Americans thought race played a major role in the outcome and needed to be discussed. Now, about one year later after the Florida jury found Zimmerman not guilty on all counts, the race debate continues. This time, Zimmerman brought a suit for defamation against NBC, but the Florida judge ruled that he had no case because he failed to prove that the television network acted maliciously, a factor required to win a defamation suit involving a public figure.

Zimmerman argued that the network’s broadcasters made him appear racist with their edited version of his 911 Call that he made on the night of Trayvon Martin’s shooting. In 2012, NBC broadcasted excerpts of the call, which read: “This guy looks like he’s up to no good…He looks black.”

The full transcript of the call reflects that Zimmerman never volunteered that Martin was black, but was instead answering a question from the police dispatcher about the teen’s race. The unedited transcript read: “The guy, is he black, white, or Hispanic?” in which Zimmerman responded: “He looks black.”

Zimmerman stated that the edited version made his call seem racially motivated, and since the airing of the transcript, he claimed that he has been publicly ridiculed and harassed. NBC acknowledged the error and issued an apology to Zimmerman.

In order for Zimmerman to have prevailed on his defamation claim he needed to show actual malice because he is considered a “public figure,” (such as a celebrity or politician) a standard set in the New York Times Co. v. Sullivan, (1964). The judge presiding over the case stated that Zimmerman became a public figure after he shot Martin, and at the time of the aired transcript he was engaged in an extremely important case of public concern.

Under case law, public figures are held to a higher standard because they have assumed public roles and therefore have a greater opportunity to publicly defend themselves to defamation and libel claims. If Zimmerman was able to show that he was a private individual, he would have only had to prove negligence, a lower standard. Private individuals generally lack the resources to defended defamation claims and are therefore afforded greater protection by not having to prove actual malice.

Because Zimmerman was not able to prove that NBC acted in actual malice, his case was thrown out. Mere manipulation of the transcript was not enough to show that the network acted in way to intentionally hurt Zimmerman.

 

– Skylar Young

Sources:

http://bigstory.ap.org/article/part-zimmerman-defamation-lawsuit-dismissed

http://www.people-press.org/2013/07/22/big-racial-divide-over-zimmerman-verdict/

http://www.nbcnews.com/id/3891881/ns/about/t/nbcnewscom-corrections-clarifications/

FIFA World Cup Trademark Infringement

The 2014 World Cup is in full swing, and futbol fans across the globe are sporting their favorite teams, but among these jerseys, caps and shoes are thousands of counterfeit products. Back in 2013, Customs even found over 500,000 counterfeit garments from a shipment from China and a majority of them displayed the 2014 Federation Internationale de Football Association (“FIFA”) World Cup Brazil Logo. FIFA has stressed to fans that their organization generates a majority of its income from sponsors and merchandise, reflecting the importance of preventing the sale of counterfeit goods.

Now host country Brazil is trying its best cracking down on merchants who are selling unofficial shirts and other merchandise that showcase the FIFA logo or something affiliated with FIFA in the vicinity of the games. This problem is raising some major trademark and copyright issues.

These merchants are engaging in “ambush marketing,” a strategy where advertisers falsely associate themselves with a particular event without paying any sponsorship fees. An example of this strategy is to use the official sponsor’s brand (name, logo or slogan) in relation to its own goods. In this case, these merchants are essentially passing-off as official sponsors, reaping the benefits of FIFA’s well-known status. This is clearly an infringement, so many companies have found other ways of creating this association without infringing, like using images of Brazil or soccer games without mentioning the World Cup or FIFA.

Under a special Brazilian World Cup Law, there is a 2-kilometer circular area around each venue hosting the games. Inside that area, only official World Cup sponsors’ products can be sold, distributed, or advertised. According to the General Law of the World Cup, anyone caught selling unofficial products could be held in prison for 3 months to a year, and may be fined.

These counterfeited goods are hard to spot, but FIFA has stated on their website a few ways to spot fake World Cup merchandise. First, the cost. A genuine FIFA jersey can cost between $90 – 150 dollars, while the “same” product from another merchant can cost as little as $25. Also according to FIFA, all official products have the World Cup hologram, official sewn-in labels, and there are restrictions on the amount of branding and sponsor logos on one product.

So, if you are like millions of people sporting your favorite futbol team, be careful of a transaction that may make you a victim of organized crime.

-Skylar Young

Sources:

http://ipmpromo.wcoomdpublications.org/Contents/Item/Display/460

http://www.fifa.com/worldcup/organisation/marketing/brand-protection/counterfeit-products/index.html

http://www.inta.org/Press/Pages/FIFAWorldCup2014_En.aspx

http://www.fifa.com/mm/document/affederation/marketing/01/37/85/97/2014_fifapublicguidelines_eng_17052013.pdf