Heigl Harried By Pilfered Picture

If the reported facts are correct, it looks like former Grey's Anatomy star, Katherine Heigl, has a slam dunk of  a commercial appropriation suit.  Apparently the actress was photographed, without her authorization, by papparazzi standing in front of a Duane Read Pharmacy Store.  The chain apparently then used the photograph in digital marketing schemes through Facebook and Twitter.

Justice Delayed is Justice Gone Wild!

I have previously written about a common misconception held by students that civil litigation is relatively painless and quick. Of course, popular culture helps foster this misconception with TV shows and movies that cover the time period from the precipitating incident to the resolution in the court system in a neat , tidy package of time and effortless proceedings. The worst offender may be the movie North Country. The movie purports to be "inspired by" Lois Jensons's landmark sexual harassment suit against Eveleth Mines in Minnesota. In the real case, Jensons's legal odyssey from first harassment to final settlement traverses a tortuous path over 24 years, prompting the Court of Appeals to make this extraordinary statement:

If our goal is to persuade the American people to utilize our courts as little as possible, we have furthered that objective in this case. If justice be our quest, citizens must receive better treatment. The judiciary must somehow afford more efficacious monitoring of delayed cases. We must achieve this goal through action, not just by words.

In the movie, the whole scenario from incident to conclusion occurs over less than a year (none of her children age at all during the movie). And her greatest challenge is to answer some mildly uncomfortable questions at trial.

That is why I think it is important to make students aware of cases such as this one recently reported.

Lindsey Bullard was a 14-year-old Powder Springs, (Ga) middle-schooler when she was stopped by a man holding a video camera as she walked down the strip in Panama City, Fla., on spring break in 2000. When the man asked her to step into a nearby parking lot and expose her breasts, Bullard complied and was given a beaded necklace in return.

The cameraman later sold the video for “Girls Gone Wild, College Girls Exposed” and a photo of Bullard exposing her breasts was put on the cover and used in TV commercials aired nationwide.

Ms. Bullard filed suit in Federal Court in Atlanta in 2004 for commercial appropriation.  Unsure whether the suit could be properly maintained in Georgia, the Federal court certified the question to the state Supreme Court.  The Georgia court upheld her right to sue in a decision issued March 28, 2013.  Ms. Bullard is now 26 years old. And now, her case can proceed ostensibly through discovery and then on to trial - at some unknown additional number of years from now.

Ms. Bullard in "Girls Gone Wild Ad": Source: http://www.wsbtv.com/news/news/local/georgia-woman-takes-case-against-girls-gone-wild-s/nSSXx/ 

We Owe a Lot to Lindsay Lohan

There are a few important contributors to the law who seem to pop up  as examples or exemplars in my Legal Environment course on more than a few occasions during the semester. If I give it some thought, I can readily name a few that come to mind; Justices Oliver Wendell Holmes, Benjamin Cardozo and Antonin Scalia, Presidents John Adams, Woodrow Wilson and Abraham Lincoln, Economic Philosopher Adam Smith, and commentators Bill O'Reilly and Stephen Colbert and, of course, Lindsay Lohan.

With the addition of the case described below, the actress and celebrity accounts for three separate examples of legal principles applied to real facts.  First, there was the lawsuit for civil assault brought against her by the passenger in a car that she apparently chased at high speeds through the streets of LA in 2007; an incident that also resulted in her arrest.  It allows for explanation of all the elements of civil assault - apprehension or fear of imminent bodily harm without the element of physical contact.

Then, there was the $10M lawsuit against e-trade that was the subject of this post.

And now we have a federal court ruling in a lawsuit that Ms. Lohan brought against musical artist "Pit Bull" for the use of her name in the lyrics of his song, Give Me Everything.

This is insane: the way the name growin'

Money keep flowin'

Hustlers move aside

So, I'm tiptoein', to keep flowin'

I got it locked up like Lindsay Lohan

According to the complaint, the use of Ms. Lohan's name in the above quoted lyrics constituted an alleged violation of NY State Civil Rights law, and gave rise to claims for unjust enrichment and intentional infliction of emotional distress. Not surprisingly, the Defendant's 12(b)(6) motion was granted. Judge Hurley's decision may be read here. The lyrics are protected from the Civil Rights claim as artistic expression and fall well below the liability threshold of "extreme and outrageous conduct."

Although he rejected the imposition of sanctions under Rule 11 for filing a frivolous claim, the judge did not let plaintiff's counsel off the hook. His order imposes a $750 fine for alleged misrepresentations in a letter to the court and an additional $750 for filing an Opposition Brief with content plagiarized from websites and  prior filings and missing legal citation.

So, my thanks goes out to Lindsay Lohan.  Her contributions to the law allow my students to see past the stuffy and stayed reputation of the law as the province of dead rich white guys.

Give Me Everything by Pit Bull and friends:

Political Appropriation, a Tort?

A New Jersey couple who posted their engagement picture on a personal blog were later mortified to learn that their special photo had been altered and used in political attack ads. As reported by ABC news, the gay couple's photo showing them holding hands and kissing with the New York skyline in the background was altered by an advocacy group targeting two Republican candidates in Colorado state legislative races.  Apparently, the candidates had not shown sufficient intolerance for prospective civil union legislation. The background of the photo was altered to show scenes that looked more like Colorado and statements attacking the candidates were affixed. Both targeted candidates lost in the primaries.

The couple has filed suit in US District Court for misappropriation.  The photographer has joined the suit for copyright infringement.  The Southern Poverty Law Center is providing counsel for the couple. While their image was most certainly appropriated, was it done for commercial purposes? What is the privacy expectation when you post an image on the internet?  Is there a political free expression defense?

The engagement photo:


One of the Colorado attack ads:


The other one:


TV news report:



See other posts on Commercial Appropriation involving:
Bette Midler
Vanna White, here and here
Tom Waits
Kim Kardashian
Lindsey Lohan

Featured Case Update: White v. Samsung

This blog originally featured the Vanna White v. Samsung case in the post found here.  Included there is an image of the part of the Samsung ad that features the robot that implicates Vanna White 's identity.  Thanks to the website of Michigan Law Professor Jessica Litman, the full Samsung ad is reproduced below.  Thanks to Professor Litman for sharing and enriching the trove of resources available for us to use in our common educational mission.

Tom Waits Growls at Advertisers, Again and Again

In 1988, singer/songwriter Tom Waits sued the Frito Lay Company for using a sound alike singer imitating Waits' unique vocal style to hawk Salsa Rio Corn Chips on a radio ad. Waits suit sought to preserve his unique style.  According to the NY Times:

"It's part of an artist's odyssey," [Waits] said, "discovering your own voice and struggling to find the combination of qualities that makes you unique. It's kind of like your face, your identity. Now I've got these unscrupulous doppelgängers out there - my evil twin who is undermining every move I make."

Waits was awarded $2.6 M by a jury for commercial appropriation (reduced on appeal to $2.5M)
Listen to the radio ad HERE. Below is the song and style copied by the ad:



Always protective, Waits sued again in a Spanish court over the Audi commercial below, copying both his vocal style and his music.  Waits was awarded $43,000 for copyright infringement and $36,000 for violation of his "moral rights" as an artist.

Audi ad:



Waits' "You're Innocent When You Dream":


Apparently, advertisers had not been paying attention.  Waits sued in a Scandinavian court over the following Opel ad copying his unique style, earning a settlement which he contributed to charity. Click on image below to see ad:


To listen to an informative summary report from NPR's All Things Considered, CLICK HERE.
A post with videos on the Midler v. Ford case mentioned in the NPR report may be found HERE. Also see similar posts on Vanna White, Lyndsey Lohan and Kim Kardashian.

Commercial Appropriation Claim: Kardashian v. Old Navy

We have seen successful commercial appropriation claims by Bette Midler and Vanna White.  Lindsey Lohan's claim deservedly crashed and burned. The latest person suiing to prevent others from trading on her fame is Kim Kardashian.  If you are like me, your first reaction is likely, "Who the heck is Kim Kardashian?"  However, I understand that she is a person well known to our undergraduate students. Yet, even the students are unable to satisfactorily answer my follow-up question, ". . . and why is she famous?"

Judge for yourself.  This is Kim Kardashian:

This is the Old Navy ad:

Lindsay Lohan sues E-Trade for $100M

Lindsay Lohan filed suit in New York's Nassau County against E*Trade for commercial appropriation claiming that the Super Bowl ad shown below traded on her identity. Watch the ad and judge for yourself. After about 6 months of litigation, the suit was withdrawn.  Apparently, she started getting better legal advice.



Lindsay Lohan's mug shot from her arrest in 2007 for drunk driving:

Featured Case - White v. Samsung

The White v. Samsung case is well known and carried in a number of texts.  Vanna White, the hostess of TV's Wheel of Fortune, sued Samsung and its advertising agency for producing, without her permission, a print ad that featured a robot dressed in a blonde wig and evening gown, and standing in Vanna's signature pose beside the Wheel of Fortune letter board. Where, as here, the ad did not use Vanna's likeness or name, the 9th Circuit determined that Samsung's actions may still constitute an infringement upon the common law right of publicity. My favorite line from the opinion shows the court's willingness to protect the publicity right even though the judges are clearly unimpressed by Vanna's "talent."

Television and other media create marketable celebrity identity value. Considerable energy and ingenuity are expended by those who have achieved celebrity value to exploit it for profit. The law protects the celebrity's sole right to exploit this value whether the celebrity has achieved her fame out of rare ability, dumb luck, or a combination thereof.

The court relied heavily on Midler v. Ford.

Samsung filed a motion for re-hearing.  Though denied, the thoughtful dissent is oft cited.

A related case that students may be interested in hearing about is the Keller case involving NCAA Athletes' publicity rights in the use of their "images" in video games. Anastasios Kaburakis from St. Louis University has a recent publication on that case.

For those of you who have searched for many years for a copy of the original Samsung ad, I hope you will be pleased to see, below, an image that I believe to be the full ad minus only the caption as quoted in the decision, ""Longest-running game show. 2012 A.D." Source.

See updated post here for a copy of the print ad.



Thanks to Ross Petty at Babson for sharing the following complimentary image of Vanna White:

Featured Case - Midler v. Ford: Commercial Appropriation

Bett Midler sued Ford in the 1980's for appropriating her identity in the form of her distinctive voice.  Ford's 1980's ad campaign was aimed at "YUPPIES" (Young Urban Professionals).  The idea was to use some evocative song from the 1970's, that would remind these 1980's disposable spenders of their more carefree college days. "Gosh, if I owned that car it would be just like being back in college." After Midler spurned Ford's entreaties to use her rendition of "Do You Want to Dance" from 1973, Ford's advertising agency hired one of Midler's former back-up singers, Ula Hedwig, to record a version.  She was instructed to "sound as much as possible like the Bette Midler record." The 9th Circuit ruled "that when a distinctive voice of a professional singer is widely known and is deliberately imitated in order to sell a product, the sellers have appropriated what is not theirs and have committed a tort in California."

I like to start the class discussion of this case by showing a minute or so of an early version of the song.  I prefer this one from Cliff Richard and the Shadows because of its "old school" set and its energy.  Plus, Richard introduces the song by saying that the band will perform a "song that is more in [their] idiom." (That's a vocabulary enhancer for those students paying close attention.) The Beach Boys' version is also available.  Or you may prefer the original by Bobby Freemen, set here to a cartoon video.





Then, I play 30 seconds or so of Midler's version:





Then, of course, comes the actual 1986 mercury sable ad:





Finally, I have this site open so as the ad ends, I click on the mp3 sample of Midler's Do you Want To Dance (found about halfway down the page). By a neat coincidence, the mp3 clip of Midler's version begins at precisely the point where Ula Hedwig's version from the ad ends. The result is a pefect side by side match of the two versions allowing students to make their own assessments regarding Ford's appropriation of Midler's "identity" in the form of her distinctive voice.