Recently in celebrities Category

March 5, 2010

Needs License for Watching the Detectives

Dear Rich: I want to use the melody (we will do the lyrics) of the 1977 Elvis Costello song Watching the Detectives in a promotional video. It is for a medical device company. Term is 9 months (this year). Do I need a sync license? Who is this sent to? (Costello is within the Universal Music Publishing Group). Wow, the Dear Rich Staff loves that song. Using it to promote medical devices is really thinking outside the box -- like way outside.  
Right, you had a question ... Yes, you need a sync license and you would need permission to modify the lyrics. You should speak with the publisher -- yes, it's Universal Music Publishing. Contact them at  2440 Sepulveda Blvd., Suite 100, Los Angeles, CA 90064 (310) 235-4700. If you run into a problem -- the typical one being that nobody takes your calls -- you may need to hire a clearance expert. You can read more about that stuff in our book. If you create your own version of the song and don't imitate the singing style of Elvis Costello -- imitating artists in ads leads to problems -- you will only need the permission of the publisher (or administrator).

Posted by Rich Stim | | Email This Post

Posted In: celebrities , copyright , licenses , lyrics , music , permission , right of privacy

Bookmark: Bookmark Needs%20License%20for%20Watching%20the%20Detectives at Google.com Bookmark Needs%20License%20for%20Watching%20the%20Detectives at del.icio.us Digg Needs%20License%20for%20Watching%20the%20Detectives at Digg.com Bookmark Needs%20License%20for%20Watching%20the%20Detectives at Spurl.net Bookmark Needs%20License%20for%20Watching%20the%20Detectives at Simpy.com Bookmark Needs%20License%20for%20Watching%20the%20Detectives at NewsVine Blink this Needs%20License%20for%20Watching%20the%20Detectives at blinklist.com Bookmark Needs%20License%20for%20Watching%20the%20Detectives at Furl.net Bookmark Needs%20License%20for%20Watching%20the%20Detectives at reddit.com Fark Needs%20License%20for%20Watching%20the%20Detectives at Fark.com Bookmark Needs%20License%20for%20Watching%20the%20Detectives at Yahoo! MyWeb
November 18, 2009

Will Wayne Dyer Love You If You Infringe?

WayneDyer.gifDear Rich: I wrote a study guide for my church for The Power of Intention by Wayne Dyer. It was given to people for free. In the study guide we quoted brief sections from Dyer's book, giving him credit, and then I wrote questions about each chapter. I want to start a little business developing study guides of existing books for churches to use. Is it fair use? The short answer is that we don't know. Issues of fair use can only really be decided by a judge who weighs several factors and does some hocus-pocus. Many literary guides survive without any hassle but there are also a few copyright cases in which copyright owners have halted "guide" books (Take a look at the Seinfeld and Twin Peaks cases here.) 
What would Wayne do? Even if you infringe, we'd like to believe that Wayne Dyer has enough love in his heart to forgive you for any copyright transgressions. Like Wayne says, "Anything you really want, you can attain, if you really go after it." So if you really want to borrow from his books and sell study guides, you should really go after it. Actually, we're not sure about that last part, we just got caught up reading lots of Wayne Dyer quotes.
Why you can probably get away with it ... The Dear Rich Staff, victims of lifelong self-defeating thinking, think that you can probably get away with selling your guides without any problem. To keep things on the safe side, don't sign a publishing deal, avoid extensive use of quotes, avoid any indicators that might imply that Wayne endorses your book -- don't put his picture on the cover (or pictures of his book covers), and it wouldn't hurt to include a prominent disclaimer on the cover to the effect that "Wayne Dyer does not endorse and is not associated with this publication." Don't let copyright get in the way of sharing your ideas -- Go for it now, because like Wayne says, the future is promised to no one.

Curious about copyright law? Check out Stephen Fishman's The Copyright Handbook: What Every Writer Needs to Know.

Posted by Rich Stim | | Email This Post

Posted In: celebrities , copyright , fair use

Bookmark: Bookmark Will%20Wayne%20Dyer%20Love%20You%20If%20You%20Infringe%3F at Google.com Bookmark Will%20Wayne%20Dyer%20Love%20You%20If%20You%20Infringe%3F at del.icio.us Digg Will%20Wayne%20Dyer%20Love%20You%20If%20You%20Infringe%3F at Digg.com Bookmark Will%20Wayne%20Dyer%20Love%20You%20If%20You%20Infringe%3F at Spurl.net Bookmark Will%20Wayne%20Dyer%20Love%20You%20If%20You%20Infringe%3F at Simpy.com Bookmark Will%20Wayne%20Dyer%20Love%20You%20If%20You%20Infringe%3F at NewsVine Blink this Will%20Wayne%20Dyer%20Love%20You%20If%20You%20Infringe%3F at blinklist.com Bookmark Will%20Wayne%20Dyer%20Love%20You%20If%20You%20Infringe%3F at Furl.net Bookmark Will%20Wayne%20Dyer%20Love%20You%20If%20You%20Infringe%3F at reddit.com Fark Will%20Wayne%20Dyer%20Love%20You%20If%20You%20Infringe%3F at Fark.com Bookmark Will%20Wayne%20Dyer%20Love%20You%20If%20You%20Infringe%3F at Yahoo! MyWeb
October 9, 2009

Sarah Palin: Calendar Girl

Palendar1.jpgDear Rich: I would like to make and sell a calendar at the same time as the forthcoming release of Sarah Palin's memoir. I have tentatively secured permission for a Palin photograph via Getty Images. As for the phrases "Sarah Palin" and "Going Rogue", which are owned presumably by Harper Collins the publisher: 1) How much would it cost to acquire permission from the publisher? 2) According to my research the process for permission is fairly simple. Is this correct? 3) Is a request like this common for a popular book on this scale? The short answer is don't bother asking for permission for your calendar. First, it's possible -- in a major publishing agreement like this --  that the publisher didn't acquire any auxiliary merchandising rights (such as calendars, note cards, etc.) Second, even if the publisher did acquire these rights the company will either publish the calendar directly or choose a favored licensee--that is, someone with whom it has previously licensed calendar rights.Third, by asking for permission, you will put the publisher on notice as to what you're doing, which could prevent you from "going rogue" yourself. Finally, even though it's possible that the publisher will assert trademark rights to "Going Rogue," it's not likely that trademark rights can actually be acquired in a single book title such as this. Bottom line: you're running a moderate risk of being hassled for issuing your calendar (and maybe also tripping over Sarah's right of publicity). Paradoxically the Dear Rich Staff believes you'll run less risk if you don't ask for permission. In any case, you'll likely face some serious marketplace competition, which is why we suggest you abandon the idea of trading off the book title and strike out with something unique (see above).  

Posted by Rich Stim | | Email This Post

Posted In: celebrities , right of publicity , trademarks

Bookmark: Bookmark Sarah%20Palin%3A%20Calendar%20Girl at Google.com Bookmark Sarah%20Palin%3A%20Calendar%20Girl at del.icio.us Digg Sarah%20Palin%3A%20Calendar%20Girl at Digg.com Bookmark Sarah%20Palin%3A%20Calendar%20Girl at Spurl.net Bookmark Sarah%20Palin%3A%20Calendar%20Girl at Simpy.com Bookmark Sarah%20Palin%3A%20Calendar%20Girl at NewsVine Blink this Sarah%20Palin%3A%20Calendar%20Girl at blinklist.com Bookmark Sarah%20Palin%3A%20Calendar%20Girl at Furl.net Bookmark Sarah%20Palin%3A%20Calendar%20Girl at reddit.com Fark Sarah%20Palin%3A%20Calendar%20Girl at Fark.com Bookmark Sarah%20Palin%3A%20Calendar%20Girl at Yahoo! MyWeb
September 29, 2009

Publicity Rights and SAT Preparation Materials

MeganFoxFHM.jpgDear Rich: I think my question relates to the right of publicity. I write and edit test prep materials for students studying for the SAT. These materials include sample test questions and examples that illustrate various grammar errors. Some of the sample test questions and examples include the names of celebrities, as well as the names of characters from novels and films (e.g., Harold and Kumar, Santino and Fredo). To illustrate an error in parallel structure, for example, I might include a sentence such as: "Steve Martin is both a brilliant physical comedian and has been successful at writing novels." Then I would include the corrected version: "Steve Martin is both a brilliant physical comedian and a successful novelist." Another example, used to illustrate an error in subject-verb agreement, is: "Megan Fox is one of those actresses who has international appeal." The corrected version would be "Megan Fox is one of those actresses who have international appeal." Would the publication and sale of materials that include these types of examples violate the right of publicity? The short and long answer to your question is that you can use fictional character names and celebrity names in your examples without violating the right of publicity. The Dear Rich Staff appreciates the opportunity to include a Megan Fox photo though we think a better example for your book might be: "Megan Fox is one of those 'actresses,' who have minimum screen time but maximum downloads." 

Posted by Rich Stim | | Email This Post

Posted In: celebrities , right of publicity

Bookmark: Bookmark Publicity%20Rights%20and%20SAT%20Preparation%20Materials at Google.com Bookmark Publicity%20Rights%20and%20SAT%20Preparation%20Materials at del.icio.us Digg Publicity%20Rights%20and%20SAT%20Preparation%20Materials at Digg.com Bookmark Publicity%20Rights%20and%20SAT%20Preparation%20Materials at Spurl.net Bookmark Publicity%20Rights%20and%20SAT%20Preparation%20Materials at Simpy.com Bookmark Publicity%20Rights%20and%20SAT%20Preparation%20Materials at NewsVine Blink this Publicity%20Rights%20and%20SAT%20Preparation%20Materials at blinklist.com Bookmark Publicity%20Rights%20and%20SAT%20Preparation%20Materials at Furl.net Bookmark Publicity%20Rights%20and%20SAT%20Preparation%20Materials at reddit.com Fark Publicity%20Rights%20and%20SAT%20Preparation%20Materials at Fark.com Bookmark Publicity%20Rights%20and%20SAT%20Preparation%20Materials at Yahoo! MyWeb
September 25, 2009

Registering Public Figures as Trademarks

Thumbnail image for john-dillinger.jpg-3706.jpgDear Rich: How would the U.S. Patent and Trademark Office respond if I altered a public domain photo of a long-deceased public figure and submitted it as a trademark? The short answer is that you'll probably have a hard time. Unlike Zazzle (see our previous post), the USPTO does not have an automatic rejection policy for images of public figures as trademarks. And unlike the Copyright Office, the USPTO isn't particularly interested in your legal rights to reproduce the image. However, there are some USPTO rules that make it difficult to achieve your objective. Most importantly, you cannot use the image of a living or deceased person if it disparages or falsely suggests a connection with that person. So, for example, the Dear Rich Staff reports that the only individual who has registered the name John Dillinger as a trademark (Reg. 2809305) is his great-nephew who claims the right of publicity under Indiana law. In other words, don't expect to be able to use the image of Babe Ruth to sell baseballs, or Elvis Presley's picture to sell pomade, unless you have a legal basis for exploiting the famous person. Also, you cannot use the image of a deceased president while the president's spouse is alive (unless you obtain the spouse's consent).

Questions about trademarks? Find out more with my book Patent, Copyright & Trademark: An Intellectual Property Desk Reference.

Posted by Rich Stim | | Email This Post

Posted In: celebrities , characters , trademarks

Bookmark: Bookmark Registering%20Public%20Figures%20as%20Trademarks at Google.com Bookmark Registering%20Public%20Figures%20as%20Trademarks at del.icio.us Digg Registering%20Public%20Figures%20as%20Trademarks at Digg.com Bookmark Registering%20Public%20Figures%20as%20Trademarks at Spurl.net Bookmark Registering%20Public%20Figures%20as%20Trademarks at Simpy.com Bookmark Registering%20Public%20Figures%20as%20Trademarks at NewsVine Blink this Registering%20Public%20Figures%20as%20Trademarks at blinklist.com Bookmark Registering%20Public%20Figures%20as%20Trademarks at Furl.net Bookmark Registering%20Public%20Figures%20as%20Trademarks at reddit.com Fark Registering%20Public%20Figures%20as%20Trademarks at Fark.com Bookmark Registering%20Public%20Figures%20as%20Trademarks at Yahoo! MyWeb
September 2, 2009

Going Postal: Image Rejection for Customized Stamps

Freud Stamp.jpgDear Rich: I have a cartoon of a character I created -- Dr. Julia Chicken -- facing off with Sigmund Freud. I wanted to make  U.S. postage stamps using that image but my artwork was rejected by Zazzle.com on the grounds of some celebrity malarkey. I had a feeling that Freud would give me trouble, but I'm not sure why. First of all, it's a parody, but even greater reason for confusion is the fact that the Freud photo is public domain. The short answer is that Zazzle is not legally obligated to manufacture your stamp. In order to use Zazzle, you must agree to their User Agreement and as you know, that means you can't use pictures of celebrities. Strange as it seems, the man who founded the psychoanalytic school of psychology and popularized the couch ("And how do you feel about that?") is still considered a celebrity 70 years after his death. He even has Beverly Hills representation. In addition to the 'celebrity malarkey,' the Zazzle User Agreement also won't let you "create a 'new' image using elements from images other people have created." So you've got two strikes against you. (Other companies sell custom postage stamps and their policies appear similar.) As for your parody and public domain defense, they're not relevant since the User Agreement trumps copyright (and nobody is accusing you of copyright infringment, anyway.) The Dear Rich staff believes you're best off dumping Sigmund from the imagery and just proceeding with Dr. Julia on stamps, instead.

Posted by Rich Stim | | Email This Post

Posted In: art , celebrities , copyright , public domain , right of publicity

Bookmark: Bookmark Going%20Postal%3A%20Image%20Rejection%20for%20Customized%20Stamps at Google.com Bookmark Going%20Postal%3A%20Image%20Rejection%20for%20Customized%20Stamps at del.icio.us Digg Going%20Postal%3A%20Image%20Rejection%20for%20Customized%20Stamps at Digg.com Bookmark Going%20Postal%3A%20Image%20Rejection%20for%20Customized%20Stamps at Spurl.net Bookmark Going%20Postal%3A%20Image%20Rejection%20for%20Customized%20Stamps at Simpy.com Bookmark Going%20Postal%3A%20Image%20Rejection%20for%20Customized%20Stamps at NewsVine Blink this Going%20Postal%3A%20Image%20Rejection%20for%20Customized%20Stamps at blinklist.com Bookmark Going%20Postal%3A%20Image%20Rejection%20for%20Customized%20Stamps at Furl.net Bookmark Going%20Postal%3A%20Image%20Rejection%20for%20Customized%20Stamps at reddit.com Fark Going%20Postal%3A%20Image%20Rejection%20for%20Customized%20Stamps at Fark.com Bookmark Going%20Postal%3A%20Image%20Rejection%20for%20Customized%20Stamps at Yahoo! MyWeb
August 7, 2009

Johnny Depp Products

pirateDM2505_468x456.jpgThumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for LicensedCharacterWeek.jpg


Dear Rich: Could I name products after the first or last name of the movie characters played by Johnny Depp? The Dear Rich Staff is going through the Johnny Depp playlist trying to figure out exactly what those products might be: Edward Scissorhands pruning shears? Ed Wood steadicam? Jack Sparrow dreadlock wax?  We assume Blow (parental warning) and Donnie Brasco (you have the right to remain silent) won't work. Whatever it is, if you're relying on consumers to connect Johnny (or Johnny as the movie character) with the product, it's probably a right of publicity violation. It could also lead to potential copyright and trademark  claims by the movie companies though you would probably be okay using public domain characters like John Dillinger, Ichabod Crane and Sir James Barrie.  The short answer is that any connection with Johnny that implies his association or endorsement is an invitation for a cease and desist letter. (And with that, we pull up the covers on Licensed Characters week and head back to normal programming.)

Posted by Rich Stim | | Email This Post

Posted In: celebrities , characters , copyright , movies , permission

Bookmark: Bookmark Johnny%20Depp%20Products at Google.com Bookmark Johnny%20Depp%20Products at del.icio.us Digg Johnny%20Depp%20Products at Digg.com Bookmark Johnny%20Depp%20Products at Spurl.net Bookmark Johnny%20Depp%20Products at Simpy.com Bookmark Johnny%20Depp%20Products at NewsVine Blink this Johnny%20Depp%20Products at blinklist.com Bookmark Johnny%20Depp%20Products at Furl.net Bookmark Johnny%20Depp%20Products at reddit.com Fark Johnny%20Depp%20Products at Fark.com Bookmark Johnny%20Depp%20Products at Yahoo! MyWeb
August 3, 2009

Getting Costume Character Gigs

LicensedCharacterWeek.jpgHi Readers: The pile of questions about licensed characters is too big too avoid. So, this week is all about Spidey, Captain Jack, Homer Simpson, et. al. We'll return to normal programming next week.

Thumbnail image for Bea_Chicago (4).JPG
Dear Rich: I want to know how one goes about getting permission from the owners of copyrights on character costumes used for children's birthday parties. I would not mind paying royalties if that was feasible.  Unfortunately, the Dear Rich Staff is not aware of a fast, easy, and inexpensive way to license the use of character costumes for parties. Most owners of licensed characters probably don't want to hear from you and/or have their own system for providing licensed characters for promotional events and parties. That's the case with Marvel, for example. On the other hand, if you don't mind working for the Licensed Man, and you are between 5' 10" and 6' 2" and physically fit enough to wear a Spandex suit, you can apply to work as one these licensed Marvel characters. Note: as the want-ad points out, "Spandex is unforgiving." (Photo above shows Dear Rich Staff with the licensed Dummies character!)

Posted by Rich Stim | | Email This Post

Posted In: celebrities , characters , copyright , permission , trade dress , trademarks

Bookmark: Bookmark Getting%20Costume%20Character%20Gigs at Google.com Bookmark Getting%20Costume%20Character%20Gigs at del.icio.us Digg Getting%20Costume%20Character%20Gigs at Digg.com Bookmark Getting%20Costume%20Character%20Gigs at Spurl.net Bookmark Getting%20Costume%20Character%20Gigs at Simpy.com Bookmark Getting%20Costume%20Character%20Gigs at NewsVine Blink this Getting%20Costume%20Character%20Gigs at blinklist.com Bookmark Getting%20Costume%20Character%20Gigs at Furl.net Bookmark Getting%20Costume%20Character%20Gigs at reddit.com Fark Getting%20Costume%20Character%20Gigs at Fark.com Bookmark Getting%20Costume%20Character%20Gigs at Yahoo! MyWeb
July 29, 2009

Clown Law: No Laughing Matter :-}

iStock_000004251822XSmall.jpgDear Rich (and Staff): Karla is a wannabe comedienne who's developed "Karla Klown," a unique and highly recognizable costume/mime act. To try it out, she goes to Times Square where she's videotaped by both tourists and a TV reporter wandering by. People laugh hysterically when they see Karla's persona on TV and in YouTube videos but they have no idea who they're looking at. So someone decides to manufacture thousands of T-shirts bearing her likeness. What should Karla do? How long would it take to trademark the "Karla Klown" persona and would it be worth it? Once "Karla Klown" appears on stage or television, is Karla granted automatic control of the commercial use of her likeness by virtue of established public exposure?  The short answers to Karla's question are: (1) if Karla has been on television and achieved some notoriety for her appearances she may be able to prevent others from copying her claiming unfair competition and violation of her right of publicity; (2) Karla can't register her persona as a trademark but she can register her name and logo (for example, her image in makeup) for sale on goods such as t-shirts. The process costs approximately $300 per class of goods or services and takes about nine months to a year. (You can learn more about trademark registration here); and (3) the point at which Karla obtains a right of publicity for the exploitation of her persona depends on several factors, described below. 
The Other Carla
Before we leave Klown-land for Legal-land, is Karla aware of Carla the Clown (aka Carla the Clown of Love). Unless Carla and Karla are the same -- and the Dear Rich staff assumes they're not -- then the two clowns may be headed for a celebrity clown smackdown. The rights to the name trademark (soundalikes matter) will go to the first person to offer clown services in the geographic region (the name does not yet appear to be federally registered). . Some clowns have not been afraid to assert trademark rights but Karla may want to consult a lawyer before proceeding.
A Clown's Publicity Rights
Whether it's Krusty, Bozo, or Weary Willie, one of the key factors in asserting a right of publicity is to popularize that clown so that it is "identifiable" by the public.  When a performer's persona is embodied in a specific role, make-up, or costume, the question is not whether the performer is identifiable under the make-up, but whether the performer and the role are inseparable. For example, in a 1994 case, a court ruled that Spanky McFarland's character from the Our Gang comedies was so closely identifiable with him that it was inseparable from the actor's own public image and on that basis his estate could proceed with a right of publicity claim. So if Karla is "inextricably identified" with a specific performer, then Karla has secured a right of publicity. If not, then ..... 

Posted by Rich Stim | | Email This Post

Posted In: celebrities , characters , right of publicity , trademarks

Bookmark: Bookmark Clown%20Law%3A%20No%20Laughing%20Matter%20%3A-%7D at Google.com Bookmark Clown%20Law%3A%20No%20Laughing%20Matter%20%3A-%7D at del.icio.us Digg Clown%20Law%3A%20No%20Laughing%20Matter%20%3A-%7D at Digg.com Bookmark Clown%20Law%3A%20No%20Laughing%20Matter%20%3A-%7D at Spurl.net Bookmark Clown%20Law%3A%20No%20Laughing%20Matter%20%3A-%7D at Simpy.com Bookmark Clown%20Law%3A%20No%20Laughing%20Matter%20%3A-%7D at NewsVine Blink this Clown%20Law%3A%20No%20Laughing%20Matter%20%3A-%7D at blinklist.com Bookmark Clown%20Law%3A%20No%20Laughing%20Matter%20%3A-%7D at Furl.net Bookmark Clown%20Law%3A%20No%20Laughing%20Matter%20%3A-%7D at reddit.com Fark Clown%20Law%3A%20No%20Laughing%20Matter%20%3A-%7D at Fark.com Bookmark Clown%20Law%3A%20No%20Laughing%20Matter%20%3A-%7D at Yahoo! MyWeb
July 24, 2009

Selling Michael Jackson Jewelry


Thumbnail image for 375px-Michael_Jackson_sculpture.jpgDear Rich: I have questions: is it legal to sell jewelry with Michael Jackson's pictures? The images are all over and I wonder if it is legal. What if the seller is just charging for the craft and not for the image? Is that OK and legal? Final question, is it OK to buy these jewelry items or is the buyer breaking the law as well?  (1) Selling MJ jewelry probably violates Jackson's trademark rights (hey, if you're in D.C., check out the USPTO tribute), his right of publicity (which passed to Jackson's estate under California law) and may also violate copyright law, unless permitted as a fair use.  (2) We don't understand your second question and we don't think a judge would either. If a crafts artist includes an infringing work on its product, it's an infringement no matter how the price is explained. Otherwise, bootleg DVD sellers could claim the buyer was only paying for the DVD not the pirated movie. (3) In some instances the buyer of an infringing work may violate copyright law depending on the intent and use of the purchase -- for example, if the buyer resells it, displays it or in any way contributes to or encourages the infringement. The pursuit and prosecution of buyers is not common. Copyright owners are more interested in sellers of infringing merchandise. So, if it's illegal, you may be wondering why the estate doesn't do something to stop the tsunami of infringements. Probably it's so overwhelming that if enforcement is taking place, it's for the most egregious and damaging offenses. 

Beat It: Finding MJ Imagery
By the way, the photo above by Dutch photographer Sjors Provoost is one of a few MJ-related images available for commercial reuse under the terms of a Creative Commons license. To find these re-usable images, begin your search using Google Image Search, then click Advanced Image Search and under "Usage Rights" choose the drop down that applies for your search -- for example, "labeled for commercial reuse with modification." Each photo should provide instructions on your rights to reproduce. 

Posted by Rich Stim | | Email This Post

Posted In: celebrities , celebrity , copyright , fair use , infringement , permission , right of publicity , trademarks

Bookmark: Bookmark Selling%20Michael%20Jackson%20Jewelry at Google.com Bookmark Selling%20Michael%20Jackson%20Jewelry at del.icio.us Digg Selling%20Michael%20Jackson%20Jewelry at Digg.com Bookmark Selling%20Michael%20Jackson%20Jewelry at Spurl.net Bookmark Selling%20Michael%20Jackson%20Jewelry at Simpy.com Bookmark Selling%20Michael%20Jackson%20Jewelry at NewsVine Blink this Selling%20Michael%20Jackson%20Jewelry at blinklist.com Bookmark Selling%20Michael%20Jackson%20Jewelry at Furl.net Bookmark Selling%20Michael%20Jackson%20Jewelry at reddit.com Fark Selling%20Michael%20Jackson%20Jewelry at Fark.com Bookmark Selling%20Michael%20Jackson%20Jewelry at Yahoo! MyWeb
July 7, 2009

Q: Why Wasn't Warhol Sued? A: He Was

andy-warhol-flowers-1964-fs-ii6.jpgDear Rich: Copyright is one of my favorite subjects as I work with students who will soon be school teachers. Here is a question my students have been exploring. Considering all the problems that Shepard Fairey has because of his derivative poster based on a photo of Barack Obama made me wonder, did Andy Warhol's paintings and prints of Campbell's soup cans, Mickey Mouse, Marilyn Monroe get him into trouble with the owners of those original works? The short answer to your question is that Warhol's art has triggered some lawsuits. 
Patricia Caulfield, the photographer whose work was used as the basis of Warhol's flower prints (above) sued in November 1966 and settled for cash and artwork. Warhol's 1964 work, 16 Jackies, was the subject of a lawsuit brought against the Warhol Foundation in 1996 by the photographer of the original Jackie photos. That led the Foundation to sue Warhol's insurer. Warhol was never sued over his Marilyns, which were based on a publicity still of Monroe. We're not sure how Warhol managed the rights for his Mickey Mouse but apparently he didn't run into the same kind of litigation in which 60's cartoonist Dan O'Neill became embroiled. Perhaps because Dan was naughty (parental advisory), and Andy was nice? Campbell's Soup Company didn't litigate; they exploited the efforts of their most famous chicken-noodle fan. The company even offers an Art of Soup contest in collaboration with the Warhol Museum. PS Speaking of cool Warhol collaborations, the Dear Rich Staff recommends this.

Posted by Rich Stim | | Email This Post

Posted In: art , celebrities , characters , copyright , paintings , photography , right of publicity

Bookmark: Bookmark Q%3A%20Why%20Wasn%27t%20Warhol%20Sued%3F%20%20%20A%3A%20He%20Was at Google.com Bookmark Q%3A%20Why%20Wasn%27t%20Warhol%20Sued%3F%20%20%20A%3A%20He%20Was at del.icio.us Digg Q%3A%20Why%20Wasn%27t%20Warhol%20Sued%3F%20%20%20A%3A%20He%20Was at Digg.com Bookmark Q%3A%20Why%20Wasn%27t%20Warhol%20Sued%3F%20%20%20A%3A%20He%20Was at Spurl.net Bookmark Q%3A%20Why%20Wasn%27t%20Warhol%20Sued%3F%20%20%20A%3A%20He%20Was at Simpy.com Bookmark Q%3A%20Why%20Wasn%27t%20Warhol%20Sued%3F%20%20%20A%3A%20He%20Was at NewsVine Blink this Q%3A%20Why%20Wasn%27t%20Warhol%20Sued%3F%20%20%20A%3A%20He%20Was at blinklist.com Bookmark Q%3A%20Why%20Wasn%27t%20Warhol%20Sued%3F%20%20%20A%3A%20He%20Was at Furl.net Bookmark Q%3A%20Why%20Wasn%27t%20Warhol%20Sued%3F%20%20%20A%3A%20He%20Was at reddit.com Fark Q%3A%20Why%20Wasn%27t%20Warhol%20Sued%3F%20%20%20A%3A%20He%20Was at Fark.com Bookmark Q%3A%20Why%20Wasn%27t%20Warhol%20Sued%3F%20%20%20A%3A%20He%20Was at Yahoo! MyWeb
June 11, 2009

Board Game Based on Movie (NOT!)

boardgame2.jpgDear Rich: I'm thinking of developing a board game based on a friend's idea. The game title and game roles are borrowed directly from a movie. Can I use the movie title and characters' names in my game? Secondly, I want to use characters' portraits from the movie in my design. What if I just draw the portraits by myself, say, in cartoon style? Third, the game rule is based on a party game called Mafia. Is that legal? Before we begin, can we send a shout-out to anyone asking Dear Rich questions about using a movie or TV show as the basis of their book, movie, t-shirt, or coffee mug? Regardless of the legal analysis provided by the Dear Rich staff, if the owner finds out about what you're doing, Games.jpgyou're likely to get hassled. (Yes, we're talking about "sue first, ask questions later.") We're not advising you give up your legal rights, but if you have limited resources, we do advise against investing them in a project with a built-in hassle factor.

Okay, the short (and long) answers to your questions are: (1) copyright does not protect titles, but may protect a title when used in connection with other important elements (like character names); trademark law may also protect the movie title, (2) your drawings may or may not avoid copyright problems (it depends on whether they're considered derivatives) and may or may not avoid right of publicity claims (it depends on how the game is marketed), and (3) the psychologists who invented Mafia don't appear to claim proprietary rights, so you're free to base your game on it as long as you don't copy somebody else's derivative version. Take-away points: enjoy the game; don't sell it.

Posted by Rich Stim | | Email This Post

Posted In: celebrities , characters , copyright , game , movies , right of publicity

Bookmark: Bookmark Board%20Game%20Based%20on%20Movie%20%28NOT%21%29 at Google.com Bookmark Board%20Game%20Based%20on%20Movie%20%28NOT%21%29 at del.icio.us Digg Board%20Game%20Based%20on%20Movie%20%28NOT%21%29 at Digg.com Bookmark Board%20Game%20Based%20on%20Movie%20%28NOT%21%29 at Spurl.net Bookmark Board%20Game%20Based%20on%20Movie%20%28NOT%21%29 at Simpy.com Bookmark Board%20Game%20Based%20on%20Movie%20%28NOT%21%29 at NewsVine Blink this Board%20Game%20Based%20on%20Movie%20%28NOT%21%29 at blinklist.com Bookmark Board%20Game%20Based%20on%20Movie%20%28NOT%21%29 at Furl.net Bookmark Board%20Game%20Based%20on%20Movie%20%28NOT%21%29 at reddit.com Fark Board%20Game%20Based%20on%20Movie%20%28NOT%21%29 at Fark.com Bookmark Board%20Game%20Based%20on%20Movie%20%28NOT%21%29 at Yahoo! MyWeb
June 5, 2009

Rights to Deceased Movie Actor Figurine

ben-living-dead-emcee-thumb.jpgDear Rich: I have a business that sells small collectible figurines. I am interested in finding out whether it is acceptable for me to create figurines of characters in movies which have entered the public domain, without obtaining permission. For example, a classic 1940s movie entered the public domain because of a failure to file a copyright or extension. The actors in this movie are well-known and have been in many other movies. I would like to produce and market a figurine of one of these characters, as portrayed by this well-known actor (who is now deceased). Is this acceptable? The short answer to your question is "yes, for the movie rights; maybe not for the rights connected with the actor's estate." The only way you could be hassled regarding the movie rights is (1) if the movie is based on a book which has not fallen into the public domain and (2) a court feels that the literary character is separately protectible. The Dear Rich staff thinks that's a long shot, since most books published before 1963 are probably in the PD. As for the actor's publicity rights, many states, including California, have a "descendible" right of publicity, meaning that the actor's estate inherits the right to exploit his persona. In California, that right lasts for 70 years after death. That's why Steve McQueen and John Wayne are still making endorsement deals. Since it is sometimes difficult to separate an actor from a character -- think Jimmy Stewart and George Bailey -- the right of publicity may be triggered by your figurine (provided the public can recognize it as being based on the actor). In that case, check your mailbox for a C&D letter.

Posted by Rich Stim | | Email This Post

Posted In: Richard Stim , celebrities , characters , copyright , permission , public domain , right of publicity

Bookmark: Bookmark Rights%20to%20Deceased%20Movie%20Actor%20Figurine at Google.com Bookmark Rights%20to%20Deceased%20Movie%20Actor%20Figurine at del.icio.us Digg Rights%20to%20Deceased%20Movie%20Actor%20Figurine at Digg.com Bookmark Rights%20to%20Deceased%20Movie%20Actor%20Figurine at Spurl.net Bookmark Rights%20to%20Deceased%20Movie%20Actor%20Figurine at Simpy.com Bookmark Rights%20to%20Deceased%20Movie%20Actor%20Figurine at NewsVine Blink this Rights%20to%20Deceased%20Movie%20Actor%20Figurine at blinklist.com Bookmark Rights%20to%20Deceased%20Movie%20Actor%20Figurine at Furl.net Bookmark Rights%20to%20Deceased%20Movie%20Actor%20Figurine at reddit.com Fark Rights%20to%20Deceased%20Movie%20Actor%20Figurine at Fark.com Bookmark Rights%20to%20Deceased%20Movie%20Actor%20Figurine at Yahoo! MyWeb
May 18, 2009

Fictitious Journal About Celebrity

iStock_000003191639XSmall.jpgDear Rich: Here's a celebrity question for you. I have a blog that serves as an entirely fictitious journal about growing up with a particular celebrity. I am not selling anything and I don't plan to do so.  I'm also not portraying the celebrity in any sort of negative light. Can I run into trouble using the celebrity's name?  What about a picture of the celebrity?  Can I add a disclaimer of some kind to avoid problems? I'm so glad you asked. In fact, that gives me an idea, since I always wondered what it would be like to grow up next dfields_totie.gifoor to Totie Fields (a funny woman and an inspiration to us all). Uh, right... back to your question. The short answer is that you can use the celebrity in your blog because most courts consider fictional uses of celebrities to be protected under the first amendment -- a right that trumps the right of publicity. You will run into problems if you make a factual misrepresentation which could reasonably be misinterpreted as being true and damaging to the celebrity ("reckless falsehoods") -- for example, you write an entry stating the celeb's in rehab and readers might reasonably infer this is true (when it's not). In that case, you could be liable under defamation, false light privacy laws. Your lack of commercial benefit (we're assuming you're not running Google Adsense or Amazon Affiliate sales), would help your claim as would providing a prominent disclaimer (scroll to bottom of this page for an example). The Dear Rich staff suggests a disclaimer something to the effect that the blog is fictional and is not approved or endorsed by [name of celebrity]. Running a picture will only cause problems if you don't have permission from the copyright owner. In any case, the Dear RIch staff advises that if you're a fearless writer with few assets, you can dispense with all this advice and do what you want. The worst that's likely to happen (no guarantees, of course) is that you'll be asked to take your blog down.

Posted by Rich Stim | | Email This Post

Posted In: celebrities , celebrity , permission , right of privacy , right of publicity

Bookmark: Bookmark Fictitious%20Journal%20About%20Celebrity at Google.com Bookmark Fictitious%20Journal%20About%20Celebrity at del.icio.us Digg Fictitious%20Journal%20About%20Celebrity at Digg.com Bookmark Fictitious%20Journal%20About%20Celebrity at Spurl.net Bookmark Fictitious%20Journal%20About%20Celebrity at Simpy.com Bookmark Fictitious%20Journal%20About%20Celebrity at NewsVine Blink this Fictitious%20Journal%20About%20Celebrity at blinklist.com Bookmark Fictitious%20Journal%20About%20Celebrity at Furl.net Bookmark Fictitious%20Journal%20About%20Celebrity at reddit.com Fark Fictitious%20Journal%20About%20Celebrity at Fark.com Bookmark Fictitious%20Journal%20About%20Celebrity at Yahoo! MyWeb
May 11, 2009

Busted by eBay for Selling Pin-Up Star Photos

pinup.jpg
Dear Rich: I sell vintage movie memorabilia, old movie posters, and move photographs that were produced by studios as publicity and advertising. They are quite collectible and even in this rotten economy manage to hold some value. I do not sell copies, only originals. I recently offered at eBay two photos of an actress -- a 50's pin-up, Playboy centerfold, and "B" movie queen -- and the actress complained that they violated her right of publicity and she had them removed from eBay. A strike has been placed on my account and I am told if it happens again I will be suspended from selling, i.e., I will be out of business on eBay. I've been running a business for years selling these types of goods. I always thought the right of publicity was intended so I could not sell copies or produce products with the images of celebrities. I did not know they also owned the rights to these vintage materials that were either sold or given away by the studios to theatre owners and newspapers. Am I really violating the law? Did the actress really have the right to have these removed? I'm so glad you asked. The short answers to your question are "No," and "No." One of the precepts behind the right of publicity is that each person should have the right to control how others exploit (or "commercialize") their persona, image, and name. For example, Woody Allen has been vigorous in his use of the right because he does not want to be perceived as endorsing other people's products (or having others imitate him to sell products). But re-selling legitimate, previously licensed photos (that is, the pinup consented to the original movie stills) is not a violation of the right of publicity. This is an area where the right of publicity intersects with the first sale doctrine and -- as this case demonstrates -- the first sale doctrine trumps.
 
As for eBay, they're casting an unnecessarily wide net, probably because it's easier than addressing each situation on a case-by-case basis. Their celebrity policy seems confusing and does not address your situation (sales of original posters or stills) and eBay's intellectual property rules don't cover your situation as well. Since your actions are not prohibited by law or by eBay, you should consider making an objection. Under eBay's rules, you can't just re-list the item; instead, you're supposed to contact eBay using the link in their email (and please feel free to link to this blog). Until this matter is resolved, the Dear Rich staff has stopped listing its Strawberry Shortcake collectibles at eBay (and we'll encourage others to do the same). 

Posted by Rich Stim | | Email This Post

Posted In: Richard Stim , celebrities , movies , right of privacy

Bookmark: Bookmark Busted%20by%20eBay%20for%20Selling%20Pin-Up%20Star%20Photos at Google.com Bookmark Busted%20by%20eBay%20for%20Selling%20Pin-Up%20Star%20Photos at del.icio.us Digg Busted%20by%20eBay%20for%20Selling%20Pin-Up%20Star%20Photos at Digg.com Bookmark Busted%20by%20eBay%20for%20Selling%20Pin-Up%20Star%20Photos at Spurl.net Bookmark Busted%20by%20eBay%20for%20Selling%20Pin-Up%20Star%20Photos at Simpy.com Bookmark Busted%20by%20eBay%20for%20Selling%20Pin-Up%20Star%20Photos at NewsVine Blink this Busted%20by%20eBay%20for%20Selling%20Pin-Up%20Star%20Photos at blinklist.com Bookmark Busted%20by%20eBay%20for%20Selling%20Pin-Up%20Star%20Photos at Furl.net Bookmark Busted%20by%20eBay%20for%20Selling%20Pin-Up%20Star%20Photos at reddit.com Fark Busted%20by%20eBay%20for%20Selling%20Pin-Up%20Star%20Photos at Fark.com Bookmark Busted%20by%20eBay%20for%20Selling%20Pin-Up%20Star%20Photos at Yahoo! MyWeb