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Eastwood v. Palliser Furniture Ltd. et al. |
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| Eastwood v. Palliser Furniture Ltd. et al. | |
Practice Area | ||
| Clint
Eastwood is seeking a federal court injunction against Palliser
Furniture Corporation for using his name without authorization by
naming one of its home theater chairs “The Eastwood.” The
complaint was filed on January 16, 2008 in the Central District of
California, alleging claims for false designation of origin and false
endorsement in violation of the Federal Lanham Act, in addition to
claims for misappropriation of name or likeness under common law and
the California Civil Code. The claims are based on the allegation
that Palliser’s use of Eastwood’s personality rights was without
authorization and creates the false impression that Eastwood is somehow
associated with the manufacturer. The complaint explains that the
chair dubbed “The Eastwood” is sold and marketed within a line of home
theater chairs named by defendants after various living and deceased
celebrities, including “The Brando,” “The Cagney,” “The Cooper,” “The
Bronson” and “The Connery.” The complaint also states that
Eastwood has a long history of rejecting third-party licenses,
reserving the exploitation of his personality rights and goodwill
associated therewith for motion picture and other business ventures in
which he is personally involved. In addition to injunctive
relief, the complaint seeks to recover all profits earned as a result
of selling the chairs and punitive damages for defendant’s “knowing,
willful and conscious disregard” for Eastwood’s rights. Eastwood v. Palliser Furniture Ltd. et al., No. 08-00266, (C.D. Cal. filed Jan. 16, 2008) |
Litigation and Alternative Dispute Resolution Intellectual Property Publicity & Life Story Rights Advertising, Marketing, Publishing & Media The Arts, Entertainment &Sports Business Transactions and Organizations |
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| Ex parte Sacha Baron Cohen et al. | |
Practice Area | ||
| Kathie
Martin, who owns and operates the Etiquette School of Birmingham, filed
a lawsuit against Sacha Baron Cohen, Twentieth Century Fox Film
Corporation and other production companies associated with the film Borat: Cultural Learnings of America for Make Benefit Glorious Nation of Kazakhstan
(hereinafter referred to as "the Borat movie"), stating claims alleging
fraud and deceit, quasicontract and unjust enrichment, commercial
appropriation and invasion of privacy, and intentional infliction of
emotional distress. Martin alleged that she had been embarrassed
and humiliated by scenes in the Borat movie in which she is seen
teaching etiquette to the film’s main character during a dinner party,
and she claims that she thought she had been legitimately hired to
teach etiquette to a foreign reporter for inclusion in a documentary
film. On April 26, 2007, the trial court denied defendants’ motion to dismiss based on the forum selection clause in the contract signed by Martin and Springland Films (one of the defendant production companies) that provided that New York County, New York was the exclusive venue for Martin’s claims. The defendants sought mandamus relief from the denial of their motion to dismiss.On January 18, 2008, the Supreme Court of Alabama found that the primary purpose of the transaction between plaintiff and defendants was interstate commerce, “specifically, to provide for Martin's appearance in a film that might be used ‘without restriction in any media throughout the universe.’” Consequently, the Court found that the Commerce Clause of the United States Constitution precluded the courts of Alabama from applying a state law rendering void contracts made by foreign corporations that fail to first obtain a state certificate of authority to transact business within Alabama. The Court concluded that Martin could not then prevent the petitioners from enforcing the consent agreement between the parties, which includes a forum selection clause, the clause under which defendants had previously brought a motion to dismiss based on lack of jurisdiction. Ex parte Sacha Baron Cohen et al., (In re: Kathie Martin v. Sacha Baron Cohen et al.) [Ms. 1061288] (Ala. Jan. 18, 2008) Jefferson Circuit Court, CV-06-7333. |
Litigation and Alternative Dispute Resolution Intellectual Property Business Disputes The Arts, Entertainment & Sports Business Transactions and Organizations |
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| Wuterich v. Murtha | |
Practice Area | ||
| On
September 28, 2007, United States District Judge Rosemary M. Collyer
refused to dismiss a libel and invasion of privacy case related to the
deaths of Iraqi civilians in the town of Haditha in 2005, and ordered
Defendant Rep. Jack Murtha (D-Pa.) to testify therein. The ruling
did not outright reject Rep. Murtha’s claim that his comments were made
in his capacity as a lawmaker and thus protected by the Speech or
Debate Clause of Article I, Section 6 of the Constitution.
Instead, the court held that it needed testimony and documents in order
to determine whether the particular comments were
protected. In a Capitol Hill news conference and follow-up
TV interviews in May of 2006, Murtha accused Marines of “cold-blooded
murder and war crimes” during the Haditha incident. Murtha’s statements
were allegedly based on information that he had received from Defense
Department officials as a member Defense subcommittee of the House
Appropriations Committee and contacts at the Pentagon and related to
his opposition to the Iraq war. On August 2, 2006, Frank
Wuterich, a Marine sergeant involved in the incident, sued Murtha for
libel and invasion of privacy. A copy of the complaint, the AP
news report of the September 28, 2007 decision by Judge Collyer and a
November 19, 2007 article on CQ.com about Murtha’s appeal of the ruling
can be found below. Wuterich v. Murtha, No. 1:06CV01366 (D.C. Cir. filed Aug. 2, 2006) AP News Report Murtha Fights Marine’s Defamation Suit, CQ.com, 11/19/07 |
Publicity, Privacy and Defamation Advertising, Marketing, Publishing, and Media |
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| Nichols v. Moore | |
Practice Area | ||
| James
Nichols, brother of convicted Oklahoma City bomber Terry Nichols, sued
documentary film producer, Michael Moore, for allegedly defamatory
statements Moore made in his movie Bowling for Columbine. The district
court granted summary judgment in favor of Michael Moore, holding that:
(1) the statements regarding James Nichols in Bowling for Columbine
were substantially true; and (2) Nichols was a limited public figure
and could not satisfy the “actual malice” standard. The Sixth Circuit
Court of Appeals agreed with the district court’s conclusions and
affirmed. The Sixth Circuit also found that the district court
correctly rejected Nichols’s “defamation by implication” claim as he
did not present any evidence indicating that Michael Moore intended to
falsely implicate him in the Oklahoma City bombing. Nichols failed to
prove that Moore’s narration included either false statements or the
omission of material facts. Therefore, noting that such “defamation by
implication” claims face a severe constitutional hurdle, the Sixth
Circuit concluded that Moore was not responsible for defamatory
implications viewers might draw from his true report of facts, absent
evidence that he intended the defamatory implications. Nichols v. Moore, No. 05-2075 (6th Cir. filed Feb. 20, 2007) |
Publicity, Privacy and Defamation Advertising, Marketing, Publishing, and Media |
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| International Profit Associates, Inc. v. Paisola | |
Practice Area | ||
| Plaintiff
consulting company brought action against representative of former
customer for violations of the Lanham Act, violation of the Illinois
statute prohibiting eavesdropping, and defamation. The consulting
company moved for a temporary restraining order (TRO) based on the
plaintiff’s Lanham Act claims that defendants were incorporating
plaintiff’s trademarks into the search terms used to lead people to its
website, using those trademarks in the domain name of one of its
websites, and using plaintiff’s trademarks in the content of its
websites. The United States District Court for the Northern District of
Illinois granted the plaintiff’s request for a TRO on the “cyberpiracy”
and “cybersquatting” claims that defendants’ website was using a domain
name that was likely to cause confusion among consumers between
plaintiff’s website, “ipaopinions.com” and defendants’ website,
“ipaopinion.com.” The court reasoned that plaintiff had established a
likelihood of success on these claims having shown that defendants had
started using the plaintiff’s trademarks only after plaintiff had
registered and began using “ipaopinions.com” and therefore the intent
to cause confusion was apparent, and actual confusion had apparently
occurred, and the damage to the goodwill of the plaintiff was
irreparable as it would be almost impossible to quantify. The
defendants were therefore ordered to cease making content available on
the Internet through the offending domain name, cease conducting
advertising using the trademarked terms, and cease from using
plaintiff's trademarks as keywords for any Internet advertising
service, including services run by Google or Yahoo. However, the court found that a limited injunction was appropriate for the plaintiff’s defamation claims because, though plaintiff had demonstrated a likelihood of success on this claim as well, only a TRO prohibiting defendants from publishing false statements was in the public’s interest. International Profit Associates, Inc. v. Paisola, No 06 C 6154 (N.D. Ill. filed Nov. 14, 2006) |
Litigation and Alternative Dispute Resolution Intellectual Property Publicity, Privacy and Defamation Software & the Internet Advertising, Marketing, Publishing, and Media |
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| Laws v. Sony Music Entertainment, Inc. | |
Practice Area | ||
| The
plaintiff brought suit against Sony Music Entertainment, Inc. for
misappropriating her voice and name in a song by Jennifer Lopez and
L.L. Cool J. The District Court found that rather than imitating Laws’
performance, Sony had obtained a license to use a sample of Laws’ song
and held that plaintiff’s claims under California law for violation of
her common law right to privacy and her statutory right of publicity
were preempted by the Copyright Act. The Ninth Circuit affirmed the
District Court’s grant of summary judgment for Sony, holding that Laws’
misappropriation claim was within the subject matter of the Copyright
Act because her voice was embodied in a copyrighted sound recording.
The Court of Appeals further held that while California law recognizes
an interest in the publicity associated with one’s voice, federal
copyright law preempts such a claim “when the entirety of the allegedly
misappropriated vocal performance is contained within a copyrighted
medium.” In affirming the District Court, the Court of Appeals also
determined that the rights plaintiff asserted under California law were
equivalent to rights protected under the Copyright Act. As long as
other state and common law actions contained different elements to
those in an action for copyright infringement, the court’s holding was
not intended to preempt such claims. Laws v. Sony Music Entertainment, Inc., 448 F.3d 1134 (9th Cir. 2006) |
Intellectual Property Publicity, Privacy and Defamation |
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| Muzikowski v. Paramount Pictures Corp. | |
Practice Area | ||
| The
plaintiff brought an action against Paramount Pictures for defamation
per se under Illinois law, claiming that a character in its movie,
Hardball, which was based on a book about the Little League baseball
team he co-founded, was easily identifiable as himself and portrayed in
a negative way. The Seventh Circuit Court of Appeals, noting that
Illinois’s “innocent construction” rule was more favorable to
defendants than most jurisdictions, affirmed the District Court’s grant
of summary judgment to Paramount Pictures. Under Illinois law, a
statement is defamatory per se if its defamatory character is obvious
and apparent on its face and injury to the plaintiff’s reputation may
be presumed. However, even if a statement falls into one of the
categories of words that are defamatory per se, it will not be
actionable per se if it may reasonably be innocently interpreted or
reasonably be interpreted as referring to someone other than the
plaintiff. If a statement is capable of two reasonable constructions,
one defamatory and one innocent, the innocent one will prevail. The
Seventh Circuit acknowledged that there were many similarities between
the plaintiff and the character in the movie but recognized some
important, non-defamatory differences which could just as easily lead a
reasonable viewer who knew the plaintiff to concede that the character
represented either a composite of the characters described in the
Hardball book or a combination of these real-life figures with a stock
Hollywood leading man. Thus, because the character in the movie was
reasonably susceptible to both innocent and defamatory constructions,
the Seventh Circuit affirmed the District Court’s conclusion that the
“innocent construction” rule defeated the plaintiff’s defamation claim. Muzikowski v. Paramount Pictures Corp., Nos. 05-3004 & 05-3005 (7th Cir. filed Feb. 8, 2007) |
Publicity, Privacy and Defamation The Arts, Entertainment & Sports |
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| Natural Wealth Real Estate, Inc. v. Cohen | |
Practice Area | ||
| Plaintiffs,
various financial institutions, brought a defamation claim and action
against prominent recording artist Leonard Cohen and other defendants
to enjoin defamatory statements published on Mr. Cohen’s website
regarding the loss of his funds allegedly at the hands of the
plaintiffs. Mr. Cohen hired plaintiff Tactical Allocation Services, LLC (“Tactical”) directed by the plaintiff Neal Greenberg to invest for him the assets placed into three charitable trusts. The assets were derived from the sales of Mr. Cohen’s intellectual property and were intended to provide long-term financial support. However, Mr. Cohen allegedly drew large sums from the trusts, depleting the principal amounts and impeding plaintiffs’ efforts to successfully invest. Mr. Greenberg warned defendant Kelley Lynch, Cohen’s manager, who oversaw and had power of attorney over Cohen’s financial dealings, and Cohen that he was spending too much and absent a change of habit would become destitute. Mr. Cohen proceeded to sell additional intellectual property and to convey the intellectual property to an entity of his creation called Traditional Holdings LLC, in which he held one percent interest and Ms. Lynch held 99%. Traditional Holdings sold the intellectual property to Sony Music and then served as an annuity for Mr. Cohen under Ms. Lynch’s management to enable Mr. Cohen to benefit from the sale without suffering adverse tax consequences. Traditional Holdings hired plaintiffs to invest its assets. Mr. Cohen instructed the plaintiffs to follow Ms. Lynch’s directions concerning management of Traditional Holdings’ assets and, purportedly at Mr. Cohen’s direction and on his behalf, Ms. Lynch continued to make unsustainable withdrawals from the trusts and from Traditional Holdings. In 2004, Mr. Cohen and Ms. Lynch parted ways and began issuing competing directives to plaintiffs, each blaming the other for Mr. Cohen’s financial distress. After allegedly attempting but failing to extort the lost sums from plaintiffs through plaintiffs’ insurance companies, defendants, using Mr. Cohen’s fame as a prominent recording artist, allegedly published defamatory statements about the plaintiffs, posting such defamatory statements on Mr. Cohen’s web site and submitting them to the press, blaming plaintiffs for the loss of the monies. Mr. Cohen instructed the plaintiffs to follow Ms. Lynch’s directions concerning management of Traditional Holdings’ assets and, purportedly at Mr. Cohen’s direction and on his behalf, Ms. Lynch continued to make unsustainable withdrawals from the trusts and from Traditional Holdings. In 2004, Mr. Cohen and Ms. Lynch parted ways and began issuing competing directives to plaintiffs, each blaming the other for Mr. Cohen’s financial distress. After allegedly attempting but failing to extort the lost sums from plaintiffs through plaintiffs’ insurance companies, defendants, using Mr. Cohen’s fame as a prominent recording artist, allegedly published defamatory statements about the plaintiffs, posting such defamatory statements on Mr. Cohen’s web site and submitting them to the press, blaming plaintiffs for the loss of the monies. On February 21, 2008, the Court granted plaintiffs’ motion for summary judgment as to Mr. Cohen’s breach of contract counterclaim, which contended plaintiffs had breached their contractual duty by sending monthly email reports that were false and misleading, which purportedly enabled Ms. Lynch to make unauthorized withdrawals. The Court determined that although defendant wants to blame plaintiffs for the depletion of the accounts, under the terms of the agreement with Tactical, both Mr. Cohen and Ms. Lynch were “the client.” The Court went on to paraphrase Justice Holmes in noting that the person reposing confidence in Ms. Lynch was not plaintiffs, but Mr. Cohen, and since the unauthorized transactions went on for a period of two years, plaintiffs could reasonably have expected Mr. Cohen to notice if anything was wrong; he could not, therefore, blame plaintiffs for his own negligence in this regard. Natural Wealth Real Estate, Inc. v. Cohen, No. 05-cv-01233-LTB-MJW (D. Colo. filed Dec. 4, 2006) |
Intellectual Property Business Transactions and Organizations Publicity, Privacy and Defamation Software & the Internet Business Transactions and Organizations |
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| C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media | |
Practice Area | ||
| In
a suit brought by a producer of fantasy major league baseball games for
a declaratory judgment against defendant owners that it had the right
to use the names and statistics of players in its games, and wherein
Players’ association intervened, the United States District Court for
the Eastern District of Missouri found that there was no violation of
players' right to publicity, under Missouri law because: (a) the use of
names and statistical records was in conjunction with playing the
games, rather than for an independent commercial benefit to be derived
from names and statistics; (b) there was no implication that players
were endorsing games; (c) producers did not use the names of players as
symbols for the players' identity or persona; (d) the use of the names
and statistical data did not involve character, personality, reputation
or physical appearance of players, or other factors shaping identity;
and (e) producers did not contravene public policy underlying the
protection of the players' rights by creating games using the names and
statistics since their actions had no impact on the ability of the
players to earn a livelihood through the playing of actual games and
existence of fantasy games might have made actual games more lucrative.
Further, the producer’s First Amendment right of freedom of expression
outweighed the players' right to control publicity since the names and
statistical information on major league baseball players constituted
non-commercial speech protected by First Amendment, even though
producer profited from games, entertainment was involved and games were
interactive. The court further found that the names and statistics of
players lacked the originality required for copyright protection,
precluding the defendants’ and interveners’ copyright infringement
claim. C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P., 443 F. Supp. 2d 1077 (E.D MO. 2006) |
Intellectual Property Publicity, Privacy and Defamation The Arts, Entertainment & Sports Advertising, Marketing, Publishing, and Media |
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| Marder v. Lopez | |
Practice Area | ||
| The Ninth Circuit upheld the district court’s dismissal of the plaintiff’s claims in Marder v. Lopez,
where the general release she had signed in the 1980’s “constituted a
waiver of all claims against Paramount arising out of any of her
contributions to the film Flashdance,’” allegedly based on
her life. The Appeals Court further upheld the dismissal of plaintiff’s
suit against Sony and Jennifer Lopez under the Lanham Act, the
Copyright Act and the state law right of publicity and unfair
competition based on its finding that because the plaintiff could not
assert a valid copyright interest in the work and had no evidence of
copyright ownership, she could not bring an infringement action based
on a music video featuring Lopez which recreated scenes from the movie.
In 1982, the plaintiff signed a general release, purporting to
discharge Paramount and its subsidiaries from claims arising out of the
creation of Flashdance in connection with her providing
information to the studio, understanding that it would use the
information to create a screenplay. Subsequently, in 2003, Sony
released a music video of a song by Lopez, which featured her
performance in scenes recreated from the movie. Giving effect
to the parties’ mutual intent at the time they entered the contract,
the court found that the language of the release was quite broad and
that the plaintiff had “released a broad array of claims relating to
any assistance she provided during the creation of” the film. As a
result, the court held that the release precluded each of plaintiff’s
claims against Paramount and that because she could not sue it to
assert co-ownership in the film, she could not establish “a prima facie
case of copyright infringement against Sony and Lopez.” Marder v. Lopez, 450 F.3d 445 (9th Cir. 2006) |
Intellectual Property Business Transactions and Organizations Publicity, Privacy and Defamation Business Disputes |
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