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.
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.
On February 13, famous jewelry designer Loree Rodkin filed a copyright infringement suit against reality television stars Lisa and Brittny Gastineau. The case alleges that the Gastineaus unlawfully imitated several of Rodkin’s jewelry designs, advertised the jewelry on instagram through their company Tres Glam and distributed said designs through Roseark retail stores.
Rodkin is well known for her unique jewelry and has designed pieces for numerous celebrities and public figures such as the First Lady Michelle Obama. Lisa and Brittny Gastineau were featured on one of E!’s first reality shows in 2006 titled “The Gastineau Girls,” which followed their exuberant lives as the ex-wife and daughter of former New York Jets player Mark Gastineau. The Gastineaus deny that their products infringe the copyright on Ms. Rodkin’s designs, telling The Daily Beast, “You can’t compare a ring that sells for $50,000 to a ring that sells for $3,000.”
Rodkin seeks damages of $150,000 for each of the four copyright infringement claims. Rodkin’s attorney’s have also sent a cease and desist letter to the Gastineaus in order to prevent any further sales of the alleged copyrighted jewelry. The case is still in its preliminary stages before Judge Frederick F. Munn of the California Central District Court.
Nick Guarino, Arther Law’s Industry Insider Blog
TufAmerica has once again come forth against a major hip hop mogul, this time alleging copyright infringement for the unlicensed use of their track “Hook & Sling Part 1.”
The lawsuit was brought against Jay-Z, Warner Bros. Music and Roc-A-Fella Records for illegally using the song in Jay-Z’s song “Run This Town.” The song, also featuring Kanye West and Rihanna, was a major hit single in the United States. Read More…
Wednesday, Marvin Gaye’s family formally accused Robin Thicke of borrowing key elements of his hit song, “Blurred Lines”, from Marvin Gaye’s 1977 song “Got to Give it Up”. The accusations don’t stop there, Gaye’s family also accuses Thicke of borrowing from some of Gaye’s other songs including “After the Dance” for Thicke’s Love and War. The Gaye family is also suing additional parties including song collaborators Pharrell Williams and T.I., Universal Music group and EMI.
“To write and record the song ‘Blurred Lines,’ the … writers intentionally and unlawfully copied and assembled a constellation of distinctive and important elements from [Gaye’s song],” the filing said. “’Blurred Lines is so substantially similar … that ordinary observers all over the world have remarked that the two songs sound the same, which they do.”
Robin Thicke has filed his own declaratory judgment on grounds that Gaye’s family threatened to file suit for “Blurred Lines”. It is no secret that Thicke has patterned himself after his beloved inspiration Marvin Gaye. He has openly mentioned that “Blurred Lines” was created with “Got to Give it Up” in mind. In an interview with GQ and Billboard before litigation Thicke is quoted as saying:
“Pharrell and I were in the studio and I told him that one of my favorite songs of all time was Marvin Gaye’s ‘Got to Give It Up.’ I was like, ‘Damn, we should make something like that, something with that groove.’ Then he started playing a little something and we literally wrote the song in about a half hour and recorded it.”
Counsel for Thicke said the songs share the same genre, but the notes are different, therefore, the fact that Thicke and his collaborators are fans of Gaye makes no difference because there is no infringement.
Thicke and his collaborators assert in their own claim that the Gaye family is attempting to claim “ownership of an entire genre, rather than a specific work.” “There are no similarities between plaintiffs’ composition and those the claimants allege they own, other than commonplace musical elements,” Thicke’s complaint said. “Plaintiffs created a hit and did it without copying anyone else’s composition.”
Nona and Frankie Gaye also filed claims against EMI, The label has connections to both parties. EMI is the co-publisher of producing superstar Williams and is said to co-own and control “Blurred Lines.” However, the label also controls the recording right to Gaye’s song through assignment, and as a result Gaye’s family claims EMI violated its fiduciary duty to the Gaye family by not pursuing the infringement and by “attempting to interfere with and thwart the Gaye family’s pursuit of these claims”. The Gaye family feels the punishment for EMI should be for it to lose all profits on “Blurred Lines” as well as rights to administer the song catalog of Gaye, known as the “Prince of Soul.”
Links for “Blurred Lines” and “Got to Give it Up” are posted below.
Most countries require both traditional radio stations and digital stations like Pandora to pay for recorded music and the underlying compositions, but traditional American stations are only legally required to pay for the compositions. However, a newly proposed bill, if passed, would change this by eliminating compulsory licensing for both digital and over-the-air stations altogether.
Jose Landivar, Arther Law’s Industry Insider
This past Monday, the U.S. Patent and Trademark Office recently published final rules in the Federal Register updating procedures for filing and processing patent applications. Supporters of the changes say that the new rules will serve to harmonize U.S. patent and filing statutes with two treaties, the Patent Law treaty and the Hague Agreement, signed more than 20 years ago. Read More…