What’s in one’s own image (right)?

From The Journal of Intellectual Property Law & Practice:

In Western culture, one of the earliest myths dealing with what would subsequently become a literary topos is the one concerning Narcissus. Narcissus was known for both his great beauty and the disdain he showed to those who loved him. In the version of the myth as told by Ovid, Narcissus’s behaviour (particularly towards Echo) prompted Nemesis, the goddess of revenge, to punish him by luring him to a pool. There, Narcissus saw his own image reflected in the water and fell in love with it, without realizing that it was just his own reflection. Unable to fulfil his love, Narcissus eventually melted away from the fire of passion burning inside him.

If we now move away from the realm of myth to that of law, a similar feeling—of attraction and yet unfulfillment—seems to be present when we review the type of legal protection available to one’s own image. In particular, it seems that this feeling is experienced where no self-standing image rights protection is available. In countries of this kind, in fact, different tools can be employed to repress unauthorized third-party uses of one’s own likeness, image, distinctive features, etc. Yet, none of them – even when combined together – seems to allow achieving the same results (and with the same apparent simplicity) that, instead, image rights as (predominantly) an expression of one’s own personality and identity provide.

The contributions that we host in this first special image rights issue move from, indeed, the attractiveness of the idea that the law should protect against the misappropriation and misuse of one’s own image. Yet, they also share a sense of dissatisfaction with the status quo

. . . .

Any change, however, would need to be made, first, in a context in which several conflicting rights and interests are at issue, including third-party artistic and commercial freedom of expression (so that any intervention would need to be ‘surgical’ in both scope and objective). Second, as the articles on, e.g. deepfakes and revenge porn show, any such change would require considerations of different areas of the law and doctrines, as well as fast-paced technological developments. In a field, that of image rights, which puzzlingly remains substantially unharmonized at the international and EU levels, the challenges that, in particular, the latter pose show the need for effective enforcement tools and responses that, due to the very nature of such challenges, will also likely need to be increasingly transnational.Our contributions allow us to travel from the United Kingdom to California, to consider EU, US and Russian laws, to appreciate the interplay between technological, public policy and legal issues, to review image rights in relation to street photography, sexual images and deepfakes.

. . . .

[Analysis of a decision by an Italian court]

The Court of First Instance of Turin held that Audrey Hepburn’s image rights had been violated due to the unauthorized use and exploitation of her likeness for commercial purposes.

. . . .

The judgment considers the two fundamental provisions concerning image rights: Article 10 of the Civil Code and Article 96 of Law No 633/1941 (the Italian Copyright Act). The former protects image rights by solely describing the behaviour prohibited by law, yet without positively defining the concept of image or image right. In fact, the provision laconically states that ‘if the image of a person or his/her parents, spouse or children has been exhibited or published outside of the cases in which said exhibit or publication is allowed by law or [it has been exhibited or published] with prejudice to the decorum or reputation of the person himself or of the aforementioned parties, at the request of the interested party the judicial authority may order that the abuse is ceased, save for compensation for damages’(author’s own translation).

. . . .

It follows that the consent of the right holder is essential for the use of one’s own image or likeness, unless one of the exceptions provided by Article 97 applies. Notably, consent is not required ‘when the reproduction of the image [of a person] is justified by the notoriety or the public office covered by said person, by necessity of law and order, by scientific, educational or cultural purposes, or when the reproduction is connected to facts, events, and ceremonies of public interest or held in public. However, the portrait cannot be exhibited or put on the market if its exhibition or marketing causes prejudice to the honour, reputation or the decorum of the person portrayed’

. . . .

Luca Dotti and Sean Ferrer Hepburn are the sons of famous Hollywood actress Audrey Hepburn. They brought proceedings . . . against Italian corporation 2223 S.A.S. di MB Management & Entertainment S.R.L. (the Defendant), for the unauthorized use of their mother’s likeness.

The Defendant had produced and commercialized nine types of t-shirts representing just as many images portraying the likeness of Ms Hepburn. More specifically, the t-shirts carried the likeness of a woman wearing a sumptuous black dress, a diamond necklace and a tiara in her hair, together with big dark sunglasses and a cigarette with a mouthpiece. All these elements stood to recall, to the general viewer, the character of the young and elegant Holly Golightly in ‘Breakfast at Tiffany’, played by Hepburn. Other images represented the likeness of the actress under a more ‘modern’ angle, by showing her covered in tattoos, or chewing a big bubble gum, or doing a vulgar gesture with her middle finger.

This unrealistic and inelegant interpretation of their mother’s likeness was considered by the Claimants as detrimental to her reputation and honour. Therefore, they sought a declaration of infringement of her image rights as well as compensation of damages, both for profit loss and the weakening of the commercial value of Hepburn’s image, as well as for the moral prejudice to her reputation.

In response, the Defendant argued that the images at hand did not consist of a mechanical representation of the likeness of the actress but, rather, a new, different, original work, which could not in itself be considered a violation. The intent was not that of devaluing the likeness of the actress or her reputation, but rather revisiting the female image through an empowering representation. Furthermore, it claimed to have lawfully used the image since the interested person was a well-known public figure so that the use would fall under the exceptions in Article 97 of the Italian Copyright Act.

. . . .

The Turin court reaffirmed the approach of earlier Italian case law, also recalling that the public interest defence, which is to be applied strictly . . . ‘does not apply where images taken from a film are published and the publication takes place in a context other than that of the cinematographic work and its marketing’.

. . . .

Having ruled out the applicability of Article 97(1), the court considered Article 97(2) applicable instead. This provision states that, even where lack of consent could be disregarded due to exceptional circumstances, the use of one’s own image is still prohibited when the use is detrimental to the honour, reputation or dignity of the person portrayed . . . . Since the images on the t-shirts portrayed the likeness of Ms Hepburn with disregard to her real appearance and her elegance, the court found that the use at hand caused a prejudice to her reputation and dignity.

Link to the rest at The Journal of Intellectual Property Law & Practice (multiple citations to statutes, cases, etc., omitted for the benefit of non-legal readers)

PG suggests that, as a general proposition, indie authors should avoid using the images of famous people (even if deceased) on book covers, promotions, etc., unless they have been dead for a long time – Ms. Hepburn died on January 20, 1993.

If an indie author is publishing a book across a variety of different national borders via Amazon, even if the use of an image might pass muster under US law, the laws of other nations might give rise to claims for damages.

PG further suggests that if someone plans to sue an author for misusing an image for a self-published book, it is quite likely that this person/entity would also sue Amazon in the same proceeding.

Amazon’s involvement would trigger Paragraph 5.8 of KDP’s Terms and Conditions which reads as follows (Highlights are PG’s. He has also separated out some of the sub-parts of the original legalese into subparagraphs for ease of reading):

5.8 Representations, Warranties and Indemnities. You represent and warrant that:

(a) you have the full right, power and authority to enter into and fully perform this Agreement and will comply with the terms of this Agreement;

(b) prior to you or your designee’s delivery of any content, you will have obtained all rights that are necessary for the exercise the rights granted under this Agreement;

(c) neither the exercise of the rights authorized under this Agreement nor any materials embodied in the content nor its sale or distribution as authorized in this Agreement will violate or infringe upon the intellectual property, proprietary or other rights of any person or entity, including, without limitation, contractual rights, copyrights, trademarks, common law rights, rights of publicity, or privacy, or moral rights, or contain defamatory material or violate any laws or regulations of any jurisdiction;

(d) you will ensure that all Books delivered under the Program comply with the technical delivery specifications provided by us; (e) you will be solely responsible for accounting and paying any co-owners or co-administrators of any Book or portion thereof any royalties with respect to the uses of the content and their respective shares, if any, of any monies payable under this Agreement; and (f) you will not attempt to exploit the KDP service or any other Amazon program or service.

To the fullest extent permitted by applicable law, you will indemnify, defend and hold Amazon, its officers, directors, employees, affiliates, subcontractors and assigns harmless from and against any loss, claim, liability, damage, action or cause of action (including reasonable attorneys’ fees) that arises from any breach of your representations, warranties or obligations set forth in this Agreement. We will be entitled, at our expense, to participate in the defense and settlement of the claim or action with counsel of our own choosing.

PG notes that that, in the event that someone felt an author had violated her/his image or publicity rights and was considering a lawsuit, author Jane Jones of Tincup, Montana, might not make a particularly attractive defendant from whom to collect a large amount of money.

However, Ms. Jones and Amazon combined would have the means to pay a very large judgment if the complaining party was successful in a lawsuit pursued jointly against both of them.

Evidence of deleted emails muddies fight over Robert Indiana’s estate

From The Press-Herald:

Hundreds of emails were deleted from the accounts of Robert Indiana and his caretaker in the period leading up to the artist’s death and the beginning of the legal battle over the rights to his works such as the iconic “LOVE” image, according to an independent consultant’s report filed in federal court Wednesday.

The attorney for the art dealer that is suing Indiana’s estate included the report with a letter, filed in U.S. District Court in New York, asking the judge to settle the lawsuit in his client’s favor, saying that caretaker Jamie Thomas, who also had power of attorney for Indiana, deleted emails that would have proven their case.

Luke Nikas, the lawyer for the Morgan Art Foundation, said the missing emails are important because they might reveal Indiana’s attitude and mindset about the work in dispute, as well as other issues in the lawsuit. He’s asking the judge for what he called “litigating-terminating sanctions” against Thomas and Indiana’s estate because key evidence was willfully destroyed.

James Brannan, the Rockland-based attorney who represents Indiana’s estate and is a subject in the Morgan lawsuit, called the move “a Hail Mary pass with no receivers in the end zone.”

. . . .

According to the report, about 500 emails were deleted, including 227 messages between Thomas and Indiana, leading up to and soon after Indiana’s death in his Vinalhaven home, the Star of Hope, in May 2018. In the suit it filed against Indiana the day before he died, the Morgan Art Foundation alleges that Thomas and others close to Indiana isolated him before his death and made fraudulent artwork under his name. The Morgan Art Foundation has held rights to many of Indiana’s best-known and most-valuable artworks, including his widely reproduced “LOVE” image, since the late 1990s, and contends the value of Indiana’s art and reputation were harmed by the actions of Thomas and others.

“Indiana’s knowledge and approval and state of mind were critical, and it was obvious he used email frequently, yet all his emails were destroyed,” Nikas said in a phone interview. “When a central witness who can no longer testify has had a substantial percentage of emails destroyed, the only way (forward) is to terminate the case in Morgan’s favor. It’s clear to us the deletion was intentional.”

Link to the rest at The Press-Herald

Who Should Get the Artwork of Purvis Young?

From The Washington Post Magazine:

In December 2018, celebrities and collectors jetted into South Florida for Art Basel Miami Beach, the annual contemporary art fair. Hundreds of people in blazers and party dresses crowded into the Rubell Family Collection, a private museum, for the opening of an exhibit of work by the late Purvis Young. Visitors wound through the rooms filled with paintings and snapped selfies destined for Instagram. They jammed onto a back patio where pink lights illuminated the palm trees. A bank sponsored the cocktail bar.

Young had made thousands of paintings during his lifetime, and this midcareer selection of about 100 pieces — which was grouped by motif: “Warriors,” “Drugs,” “Holy Men and Angels,” and so on — took up the museum’s entire ground floor. Perhaps the most famous painter to ever come out of Florida, Young had depicted the struggles and joys of Miami’s poor black community and was branded an “outsider artist.” His work is in the collections of New York’s Metropolitan Museum of Art and two Smithsonian museums. Lenny Kravitz, David Byrne and Jane Fonda are all professed fans.

Eddie Mae Lovest, a petite 62-year-old in jeans and a tank top, slid through the crowd from painting to painting, pausing for a few seconds at each. Young’s works were among the first things that she noticed when she stepped off a Greyhound bus into downtown Miami in the early 1970s, a pregnant teenager fresh from the woods of Georgia. “It was me coming from a little old country town,” she had explained the day before the art show. “It was so many lights and so many people, and all these big buildings.” She thought it was crazy that someone had nailed hundreds of paintings all over abandoned buildings in Goodbread Alley, a desolate stretch of 14th Street where, decades earlier, johnny cakes were sold out of shotgun shacks. The paintings, on scraps of wood and broken doors, depicted funerals, wars, celebrations. They were full of stringy figures with extra-long bellies, long arms stretched up to the sky. “I was like, ‘Who the hell let these kids be drawing on their buildings?’ ” Lovest said. “Where I come from, you don’t draw on people’s stuff!”

Walking to her job at a downtown dry cleaner, Lovest would pass the Bahamian restaurant where Young sometimes helped the owner. The artist had a thick build, serious face and a wisp of a mustache. Soon, “we became the best of friends. For 37 long years … I took care of him, and he took care of me, from the time I met him until the time he died. Never was married. Never was girlfriend and boyfriend. Just the best friend I could have ever had.”

Young never had a wife or biological children. When he died in 2010, he named Lovest and 12 of her daughters and grandchildren as the main beneficiaries of his will. He left hardly any cash, but he did leave 1,884 artworks. Lovest assumed a sale would eventually be arranged and her family given its due. So she was surprised in 2018 to learn that a judge had let lawyers take all of the art to satisfy a half-million dollars in bills racked up on Young’s behalf. Her family hadn’t gotten a cent — or a single painting.

. . . .

Purvis Young grew up in Overtown, a historically black neighborhood in Miami once known as “the Harlem of the South.” The area was devastated when Interstate 95 was built right through it as part of urban renewal efforts of the 1950s and ’60s. Released from prison in 1964 after serving three years for breaking and entering, Young could be seen working near the highway in paint-splattered clothes, his outfit sometimes topped off with a beret. Neighborhood guys would scrounge scraps of plywood for him to use as canvases. Firefighters who were painting hydrants would bring him what was left in their buckets.

. . . .

Young was moved by the troubles he saw in the news: the Vietnam War. Protests. Sit-ins. Angels, he said, visited him and told him to paint. “I didn’t have nothing going for myself. That was the onliest thing I could mostly do,” Purvis said in a 2001 book, “Souls Grown Deep.” He returned to the same subjects over and over again: refugees arriving on boats, busy cityscapes full of trucks and buses, wild horses. The people in his work danced, prayed and grieved — often in crowds, suggesting an urgency. Pregnant women were a frequent theme; Purvis imagined them giving birth to angels and bringing forth a new nation. Sometimes his pregnant women had dozens of squiggly babies around them.

When he wasn’t painting, Young, a high school dropout, spent hours at the library, flipping through volumes about Vincent van Gogh and Henri de Toulouse-Lautrec, which charmed the librarians. When he learned about the “Wall of Respect,” a 1967 mural in Chicago that celebrated black history, he nailed up his own paintings in Goodbread Alley. “My feeling was the world might be better if I put up my protests,” he said in “Souls Grown Deep.” “I figured the world might get better, it might not, but it was just something I had to be doing.”

Young fit into the “self-taught,” “outsider” or “folk artist” genre that started gaining steam in the ’70s. His librarian friends arranged an exhibit of his work. The city hired him to do a few murals. Curious tourists coming off the new highway would stop and buy paintings for cash.

. . . .

By the mid-’70s when the buildings in Goodbread Alley were demolished, Young was being taken seriously as an artist. In 1989, a Miami art dealer, Joy Moos, signed Young to an exclusive contract and introduced his work to contemporary art galleries in New York and Chicago. Now 87, Moos recalled taking the artist to the dentist and helping him open his first bank account. In some ways, she said, “it was like taking a child.”

A Cuban Santeria priest named Silo Crespo acted as Young’s manager. According to Moos, Crespo told her that Young deserved a $30,000 or $60,000 base salary, plus commissions. When Moos balked — Young’s pieces sold for a few hundred or few thousand dollars, which she shared with the artist in an industry standard 50-50 split — Crespo put Santeria curses on her family. She hired a priestess to remove them: “I had to have the gallery cleaned. I had to do all this voodoo stuff with a cut chicken head.”

Leon Rolle, then a practicing lawyer, said Young asked him for help ending his contract with Moos so the artist could be free to negotiate with Gerard C. “William” Louis-Dreyfus — billionaire energy mogul, father of actress Julia Louis-Dreyfus and collector of self-taught artists. In Rolle’s telling, Louis-Dreyfus offered Young $3 million for 1,500 pieces and dangled the idea of sending him to Paris to paint. But the collector was worried about oversupply and wanted Young to destroy a third of his inventory. Rolle said Young rejected the deal, griping, “They never told Shakespeare he wrote too much!” (Both Crespo and Louis-Dreyfus have since died. Jeffrey Gilman, president of the William Louis-Dreyfus Foundation, doubted the billionaire would have wanted art destroyed: “He couldn’t even bring himself to sell anything!” Moos said Rolle and Crespo had unrealistic expectations of the value of Young’s work and didn’t understand the market.)

Young’s standing in the art world was solidified in 1994, when the Smithsonian American Art Museum (SAAM) bought one of his works, an untitled piece from around 1987. 

. . . .

By the mid-’90s, Young had moved into a studio in Miami’s industrial Wynwood neighborhood, where he slept in a recliner with three TVs blaring at once. “One with Fox News,” said Sharon Rolle, “and one for the sex movie” — Eddie Mae laughed — “and one with his History Channel.” “And jazz music playing,” added Leon.

As his artwork piled up, the space became a fire hazard, and in 1999, Young faced eviction. By coincidence, art collectors Don and Mera Rubell, who had helped launch the careers of Keith Haring and Jeff Koons, admired Young’s work at a friend’s house and dropped by his studio. “With him, it’s all in the gesture,” Mera Rubell said at her museum this spring. “He could put 100 figures in a crowd just with his single wiggle and you could know they’re in protest, or a crowd witnessing a funeral.” She compared him to Edgar Degas, Georges Seurat and Alberto Giacometti.

The Rubells offered to buy his entire inventory, more than 3,000 pieces. Mera Rubell declined to disclose the price, but locals have speculated that it was anywhere from $60,000 to $1 million. Young told Lovest it was $85,000, but she’s not sure that’s right either. Whatever the amount, it was enough to save him from eviction. The Rubells vowed never to sell Young’s work and have gifted 493 of his pieces to institutions. When they gave 91 pieces to the Tampa Museum of Art in 2004, Sotheby’s appraised the gift at $1 million, an average of nearly $11,000 per piece; 109 works donated to Morehouse College in 2008 were valued at more than $1 million, over $9,000 apiece.

In Wynwood, around 2005, Young also met a gallerist named Martin Siskind who became his new manager. Now 78 and operating a gallery in Little Haiti, Siskind recalled the artist had a touch of cunning: “Everyone talks about, ‘He was a friendly giant, very ignorant, didn’t know the ways of the world.’ That couldn’t be further from the truth! People would try to take advantage of him. He felt he took advantage of them! Soon as they bought 10, 20 paintings, he’d say, ‘Man, I could paint another 20 paintings this afternoon.’ ”

It wasn’t long, though, before Young came to believe Siskind was the one trying to take advantage of him. He complained that Siskind allotted him just $500 a week, refused to provide an accounting of art sales and changed the locks to the warehouse where his paintings were stored, according to a lawsuit the artist later filed against Siskind. In January 2007, while Young was in the hospital for a kidney transplant, he fired Siskind from his bed in intensive care and retained a lawyer, Richard Zaden, to sue him. “We stopped what we were doing and put his case to the front burner,” Zaden recalled. Siskind argued their relationship had been a partnership and demanded 50 percent of Young’s inventory — about 1,000 pieces — to end it. He also told a probate judge that Young required a guardian. Young found out only when a court-appointed lawyer appeared at his bedside to perform an evaluation.

Guardianship is intended to protect vulnerable people, such as those with dementia, from mismanaging their finances or making harmful decisions. But critics of the system say it’s too easy to put a ward under a guardianship and give a stranger power over his life. Under Florida law, any adult can file a petition alleging that another is incapacitated. A three-person team investigates and reports to a probate judge. (One of the three must be a physician.) The judge decides whether to appoint a guardian, who can suggest which of the ward’s rights — such as voting or determining his own residence — should be taken away. Any high school graduate can become a professional guardian if they fulfill certain requirements, which include completing a 40-hour course and passing an exam, a credit check and a background check. Guardians are paid by the ward, as are lawyers brought in for court proceedings. As these bills add up, they can drain a ward’s savings. Critics also complain of coziness between judges and lawyers who work closely in guardianship courts.

People close to Young felt Siskind had sought the guardianship as retaliation, but Siskind insists he only had good intentions. “I thought [the guardians] would take care of him, and I could step aside and hope for the best,” he told me.

Miami-Dade probate court judge Maria Korvick, who oversaw Young’s guardianship case, declined to comment for this story, citing ethics rules, but in a 2018 court transcript, she remembered Young as someone who was in “very, very bad shape. … He didn’t like to listen to doctors, and he didn’t like to eat what he was supposed to, but he was a darling man.” She appointed two guardians: Anthony Romano, as “guardian of the person,” was tasked with overseeing Young’s housing and medical care; and David Mangiero, as “guardian of the property,” was charged with overseeing the artist’s assets and finances.

Link to the rest at The Washington Post Magazine

The OP reminded PG of a dispute over an estate that had been going on for over 13 years when he became involved.

The estate was worth about $1 million when the woman had died. She was unmarried and had no children. She signed a will, but then took a long road trip around the country to visit friends and relatives and took her will with her.

During this trip, she made a great many written changes to her will, some in ink and others in pencil. In addition to changing the terms of the will, some of her changes conflicted with other changes she had made. Some changes were partially crossed-out, leaving portions of bequests intact.

PG was hired by a nephew of the deceased to represent him after the 13 years mentioned. He managed to persuade the judge to set a court date for a trial of everyone’s claims. Over 20 attorneys showed up along with about 75-80 heirs and would-be heirs.

The judge told the attorneys that, if their clients did not agree on a settlement, he was going to enter a judgment that almost everyone in the courtroom would not like. He then announced that he would start the trial in three hours unless the case had been settled by then.

The attorneys got together in another room in the courthouse. They first agreed that no one wanted to attempt to try the case because 1) it would take anywhere from several days to several weeks, 2) no one had the slightest idea how the judge would rule and 3) regardless of how the judge ruled, someone would appeal the verdict, it would take a very large time for the appellate court to review the case and it was almost certain that court would find something the trial judge did wrong and, potentially, send the case back for a retrial.

Over the course of two hours, the lawyers came to an agreement that gave everyone something, but nobody as much as they wanted. They then presented the agreement to their clients (some via long-distance telephone [this was before cell phones were in common use, so all the landline phones in the court clerk’s office plus the telephones in various law firms within walking distance of the courthouse were used]). It took about an hour and PG would not want to have heard some of the phone conversations, but finally all the clients agreed and the case was settled.

The moral behind the OP and PG’s war story is that everyone, particularly people like artists and authors who own intellectual property, needs an estate plan. Whether that plan will entail a will or a trust or both will be up to the individual after counseling with an attorney, but anything the attorney prepares will be better than nothing.

And, for heaven’s sake, if you want to make changes later, go to the original attorney or another one to get a little help so that your 30-year-old heirs won’t be over 40 by the time they receive their share of the estate and won’t have to pay most of their inheritance to one or more lawyers.

For the avoidance of doubt, PG hasn’t created an estate plan for well over 20 years and is not going to re-start doing so now.

Unless you are a very wealthy person, any number of attorneys can competently handle the creation of the documents that will make your death easier on your heirs. (PG makes no representations concerning whether any documents will make your death easier for you or not.)

Make sure you tell your attorney about the books, stories, poems, etc., that you have written, the copyrights you have obtained respecting those items and any outstanding publishing agreements you have signed that affect those items so she/he can make provision for their distribution. Preparing a list of such items before you visit the attorney is almost certainly a good idea.

Missouri could jail librarians for lending ‘age-inappropriate’ books

From The Guardian:

A Missouri bill intended to bar libraries in the US state from stocking “age-inappropriate sexual material” for children has been described by critics as “a shockingly transparent attempt to legalise book banning” that could land librarians who refuse to comply with it in jail.

Under the parental oversight of public libraries bill, which has been proposed by Missouri Republican Ben Baker, panels of parents would be elected to evaluate whether books are appropriate for children. Public hearings would then be held by the boards to ask for suggestions of potentially inappropriate books, with public libraries that allow minors access to such titles to have their funding stripped. Librarians who refuse to comply could be fined and imprisoned for up to one year.

. . . .

PEN America’s deputy director of free expression research and policy, James Tager, called Baker’s bill a “shockingly transparent attempt to legalise book banning in the state of Missouri”. He said it was “clearly aimed at empowering small groups of parents to appoint themselves as censors over their state’s public libraries” and said that books containing sexual themes, LGBTQ characters and exploring the impact of sexual assault could be “on the chopping block if this bill is passed”.

“Every reader and writer in the country should be horrified, absolutely horrified, at this bill,” said Tager. “The fact that a librarian could actually be imprisoned for following his or her conscience and refusing to block minors from access to a book, that tells you all you need to know about the suitability of this act within a democratic society.”

Link to the rest at The Guardian

PG practiced law in Missouri a long time ago.

It appears that some of the members of the state legislature are still elected from the same pool of prospects that existed in days of old.

Maradona successfully sues Dolce&Gabbana over unauthorized use of his name on a jersey

From The IPKat

Readers might remember that, a couple of years ago, this blog reported on a lawsuit filed in Italy by former Argentinean footballer Diego Armando Maradona against Italian fashion house Dolce&Gabbana.

The reason?

The use, by the defendants, of his name on a jersey (below) worn by a model during a fashion show held in Naples in 2009 [Maradona played for Napoli for a few years, and in that city he reached the peak of his career]. The jersey, which was sold neither before nor after the show, carried the number ‘10’, ie the same number used by Maradona while at Napoli, and had the same colour combination as Napoli jerseys. Images of the jersey appeared on general interest media and also on the Dolce&Gabbana website.

. . . .

Maradona sued and claimed damages for EUR 1 million (!) due to the unauthorized commercial exploitation of his name. He submitted that Dolce&Gabbana’s use of his name had allowed them to take an unfair advantage of his repute and also likely misled the public into believing that there would be a commercial partnership between himself and the defendants.
News has reached The IPKat that now the Milan Court of First Instance has issued its decision on the matter, finding in favour of Maradona. The court noted that [the translation from Italian is mine]:

 Without any doubt, the use of a decorative element which reproduces a third-party distinctive sign or name, leads – to say the least – to the establishment of an association with that person. If the sign is well-known, also and above all in a non-commercial sector, and conveys – like the sign at issue – particular impressions of historical allure and football excellence, it cannot be freely used by third-party undertakings without the permission of the rightholder.

Link to the rest at The IPKat

Generally speaking, PG suggests that you’ll have a quieter life as a fiction author if you create fictional characters with fictional names.

Briefly, there are two classes of potential claims if you use the name of a real person.

In the US, these are state laws, so there is no federal law you can rely on across the US. As you can see from the OP, there are also similar laws in some other countries, so if you publish internationally, you, too may be subject to the laws of Italy even if you live in Wichita.

The two types of claims are usually characterized as follows:

1. “The right of publicity is generally defined as an individual’s right to control and profit from the commercial use of his/her name, likeness and persona, which shall be referred to in this article as the “individual’s identity”. Protecting the individual from the loss of commercial value resulting from the unauthorized appropriation of an individual’s identity for commercial purposes is the principle purpose of this body of law.” See Findlaw for more.

2. “Invasion of Privacy: Appropriation of a Name or Likeness

An individual may have a cause of action for invasion of privacy when their name, likeness, or some other personal attribute of their identity has been used without permission. For example, a business may use an individual’s personal photograph without consent to advertise its product. Alternatively, a person may use the name and personal information of another without consent for professional gain.

To succeed in an appropriation lawsuit, you must prove that:

1. You didn’t grant permission for the use of your identity.

2. The defendant utilized some protected aspect of your identity.

(The law varies state-by-state on what constitutes a protected aspect of identity. For example, California law expressly protects a person’s name, likeness, voice, signature, and photograph, whereas Florida statutory law is more limited, protecting only a person’s name, likeness, portrait, and photograph. State statutory law differences are frequently minimized by case law, but these differences nonetheless can affect the strength and scope of your claim.)

3. The defendant used your identity for their immediate and direct benefit.

(This “benefit” is typically commercial, as in the use of a personal photograph for advertising. Some states, such as Florida, limit liability to situations involving a commercial benefit. In other states, however, liability may attach even if the defendant appropriated the identity for a noncommercial benefit, such as impersonation for professional gain.)” See Findlaw for more.

PG suggests that you don’t really need to use Kim Kardashian’s name in your novel. Search on the term “name generator” and you will find lots of websites that will help you create a fictitious name for your wealthy Beverly Hills heroine.

Reedsy is one such site.

Here, for example, is a suggestion for an Old Celtic female character:

Donnag Ó Mocháini

First name means: “World ruler.”

And a male Hindu god:

Yama

First name means: “Buffalo-headed lord of death.”

And a Dragon:

Draak

Which means: “That nasty lawyer who representeded my husband in our divorce last year.”

The Hunt As History And As Game

The following item is a bit more on the legal side than PG posts on TPV. Since the article is written by a law school professor and discusses a book written by another law school professor, it is highly legal. For PG at least, it does show how the less-traditional forms of property have some fuzzy edges around them.

However, it’s a discussion of the origin of the concept of property in the United States. Property comes in a variety of different forms. First a couple of easy property concepts:

  1. Real Property is what we might usually call real estate – land – a farm, a lot upon which someone builds a house or apartment building, etc. These days, ownership of real property is usually acquired when a seller who owns the property transfers title to the property to a buyer. A deed is usually involved, describing the real property being conveyed with enough detail so the property conveyed won’t be mistaken for other property. Deeds are typically recorded with a local government agency and are part of a public record that allows anyone who has questions about a piece of real property and its past and present ownership to examine the record and the documents transferring title.
  2. Personal Property is all kinds of other stuff that isn’t real estate. Your clothing is personal property. An automobile is personal property. The furniture and furnishings in your house (as opposed to the house itself and the land on which it sits) is personal property.

Intellectual Property is a right to intangible property created by someone – a painting, book, photograph, sculpture, etc., etc. Intellectual Property usually includes not only the right to own, transfer, etc., the original of the painting, photo, etc., but also the right to make copies of the original creation and/or to permit others to make copies, whether exact copies of the original or copies that derive from the original – a novel that is adapted into a play is but one example.

Strictly speaking, when a photographer makes a photo using a traditional film camera, the photographer is creating a negative which appears after proper chemical development. From that negative, one or more positive prints can be made. The photographer owns the negative and the exclusive right to make prints of the negative. If the photographer takes a photo of a painting created by someone else, there can be a couple of different types of intellectual property involved – the IP of the painter that is associated with the painting and the IP of the photographer associated with the creation of the photo.

With that quick and dirty introduction, here is an article about Pierson v. Post (footnotes are omitted, but you can see them in the original, of course).

From Jotwell:

Most American law students are familiar with Pierson v. Post, a case that has been a fixture in American property law casebooks for well over half a century. Decided by the New York Supreme Court in 1805, Pierson v. Post is used in property law courses to illustrate the question of how property rights arise in wild animals. Today, it is frequently taught alongside cases exploring how property rights arise in contemporary contexts such as ground water, human genetic materials, baseballs hit into stadiums crowded with fans, and the like. The facts of Pierson are simple and memorable: Post is in pursuit of a fox on a beach in Long Island when Pierson interrupts the hunt and kills the fox. Has Post acquired a property interest in the fox by virtue of the fact of being engaged in pursuit of it? The New York court deciding the case canvassed a range of European authorities going back to Justinian. The majority ruled that no property rights could arise in a wild animal unless it was captured. The rule it advanced has the virtue of clarity. But it risks being unfair to Post, particularly if he was at the point of killing the fox and/or if his labors had made it easier for Pierson to kill it. The dissent, in a witty opinion by Judge (and future U.S. Supreme Court Justice) Henry Livingston, would have allowed for property rights in the fox to arise through something short of actual capture, namely, imminent taking. The dissent’s solution might be fairer to Post, perhaps, but specifying what counts as an imminent taking is no easy task, entailing more work for lawyers and judges.

In my own property law course, Pierson v. Post has appeared either at the beginning or the end, but in neither instance have I devoted more than half an hour of a single class session to it. I teach Pierson v. Post because it neatly illustrates the difference between clear rules and blurry standards, but also because it is a “classic.” I do not want my students to leave the course without having a glancing familiarity with something they are “supposed” to have run into in law school.

What has been a minor pedagogical experience for me and my students has been, it is fair to conclude, an obsession for Angela Fernandez. She has spent a decade working on her new book, Pierson v. Post: The Hunt for the Fox, and has recently authored a “rewrite” of the Pierson v. Post dissent in which she adopts the style of someone writing in 1805 but advances feminist and animal rights sensibilities. My review will cover both the book and the “rewritten” dissent and will set them in relationship to one another.

Fernandez offers us a history of Pierson v. Post backed by impressive archival research. She shows how our simple lawyerly rendering of Pierson as a choice between different rule regimes obscures the complex literary, social, and intellectual universes that shed light on, even as they are illuminated by, the case. However, Fernandez follows no linear narrative, advances no neat argument, offers no simple “takeaway.” Instead, she picks up on the different leads the case presents and follows each into different archives. The result is a book without a stable center. The reader is offered exhaustive treatments of the following, each of which speak to some aspect of the case: the ribaldrous masculinist culture of literary games and theater engaged in by Anglo-American lawyers in the early nineteenth century; the practices of hunting foxes and whales; the lives of the Pierson v. Post litigants, their lawyers, and the judges; the relations between Native Americans and settlers in early nineteenth century New York; different legal characterizations of land and animals; the appropriation of Pierson v. Post in nineteenth century treatises and twentieth century casebooks; and so on. Fernandez even gives us photographs of the beach on Long Island where that famous fox hunt took place over two hundred years ago.

. . . .

Apart from its structure, to my mind, the most important contribution of Fernandez’s book is the way it foregrounds the plurality of what law is. We might think of law as giving us rules to solve problems.  In one sense, it is that. Fernandez would surely agree. Pierson is, after all, a case that presents us with different rules for deciding when wild animals become private property. However, in the book, Fernandez shows brilliantly that law has been—and continues to be—a great deal more. Specifically, she highlights the many ways in which the law relates to, produces, and offers up things that are not instrumental in any simple sense, things that constitute a kind of excess, things that refer back to themselves. Here I have in mind Fernandez’s exploration of the famous Livingston dissent in the Pierson case that takes us into the early nineteenth century masculinist legal culture of literary allusion, games, and theater and, later in the book, her investigation of the world in which law is the writing of treatises and case books all relating to and revising one another. The law, as she describes it for us, is these things—all of them excessive or self-referential in important respects—as much as it is about solving any particular dispute or problem.  I agree entirely.

With this as background, I want to suggest that Fernandez’s “rewritten” dissent in Pierson v. Post—her act of “updating” the case to reflect her feminist and animal rights sensibilities in the voice and tone of someone writing in 1805—is yet another instantiation of this self-referential, excessive, allusive, theatrical or game-like legal tradition she explores in such depth.  What is the point of “rewriting” a dissent to a two hundred-year old opinion, one might well ask? Why not just ignore the opinion, or criticize it, or declare it to be unjust or wrong? Why go through the laborious exercise of “rewriting” it? What is this if not a literary exercise—another act of self-referential theater or a game–in which the object points to itself as much as to the new politics it seeks to perform?

What is the relationship between this kind of self-referential legal-literary exercise with the conventional disciplinary historical one of situating Pierson v. Post “in context”?  One of Fernandez’s stated goals in the book is to change our understanding of the case itself. As she herself puts it: “My intention in this book is to disrupt any previously dominant understanding of Pierson by changing the way we think about it.” (P. 326).  We know an enormous amount about Pierson v. Post thanks to Fernandez’s attempt to track down everything related to it. But we do not really get a clear sense of how her hunt for details and the consequent massive building up of context relates to the self-referential, literary, theatrical, game-like quality of the law reflected in the original opinions in Pierson v. Post, the subsequent appropriation of the case by legal writers, and in Fernandez’s own decision to “rewrite” the Pierson dissent after learning all that seems humanly possible to learn about it.  How does one historicize a game? Is history the best way of understanding a game? Is playing the game a better way?

Fernandez does both. On the one hand, she historicizes the games of law: the book can be read as history. On the other, as revealed in the book and the “rewritten” dissent, Fernandez plays the games of law herself, both in structuring her book like a fox hunt (itself a sport) and following her prey wherever it takes her and in artfully “rewriting” the Pierson v. Post dissent to transpose her political sensibilities into the language of the early nineteenth century. She offers novel ways of doing history and playing with and in history. For these reasons, her work merits our attention.

Link to the rest at Jotwell

US vs. Apple

From The Wall Street Journal:

Politicians and social critics who worry about “the curse of bigness”—and vow to rewrite antitrust law to break up Facebook and Google—forget what happened the last time the government used the law against a Silicon Valley company. In 2012 the government successfully sued Apple for daring to compete with Amazon in selling e-books. The unintended result was not exactly a victory for the consumer or for competition: the continued dominance of Kindle, Amazon’s e-book format and reading device; increased e-book prices; and suppressed e-book innovation.

Chris Sagers, a law professor at Cleveland State University, explains in “United States v. Apple: Competition in America” what he sees as confusion about antitrust law. His analysis can be helpful—he notes the long history of companies invoking claims of “predatory pricing” as a cudgel against more efficient competitors and stresses that consumers often benefit when industries and companies are driven out of business—but he is confused about the case itself.

His thesis is that Apple’s entry into the e-book market was so clearly a violation of antitrust law that critics of the case must not believe in competition. But critics object to an interpretation of antitrust law that ended up punishing Apple for introducing a new pricing approach—an approach that is now common in every other area of online sales. Mr. Sagers forgets the guardrail rule of antitrust: Don’t bring cases against innovations that create more competition.

Consumers were delighted when Amazon launched its Kindle e-reader in 2007, and book publishers were happy to sell books in digital form. But there was an unusual feature. In its selling of e-books, Amazon operated according to the same pricing arrangement that had governed the sale of print books—that is, it bought e-books wholesale and chose its own price for them, just as bookstores had long done with print books. Brick-and-mortar bookstores needed this pricing flexibility for many reasons, not least to clear their inventory of unsold books by means of lower prices. The arrangement let Amazon sell e-books for years as a loss-leader—at the low price of $9.99—to boost profitable sales of its Kindle devices.

Around the same time, Apple had set about licensing music, video and games so that consumers would have reasons to buy its iPad. Apple realized that, for digital goods, there was no reason to follow the wholesale model. It could simply set up a revenue-sharing formula. Content owners and app developers—think of an iPad or iPhone game, such as “Minecraft” or “Fortnite,” that offers premium features—could pick their own price, even choosing to offer content free, and Apple would take 30% of any sales as a commission.

When Steve Jobs decided to include e-books on the iPad in 2010, Kindle had a 90% market share. So book publishers were again delighted—that Apple would be entering the market with its revenue-share model and letting publishers set the prices for their e-books. The largest publishers met among themselves to agree on the terms for licensing their books to Apple. The government sued, claiming an unlawful conspiracy masterminded by Apple.

Mr. Sagers sees this as an open-and-shut case of an unlawful pricing conspiracy and expresses surprise that there was so much support for the book publishers and Apple. He rightly dismisses the self-serving argument that books are so culturally important that publishers and Apple deserved an antitrust exemption. He is also right to note that Amazon was not, despite its huge market share, an unlawful monopolist—big is not always bad.

. . . .

Mr. Sagers believes that opposition to the Apple case shows that Americans are ambivalent about competition. There are times, he says, when “competition seems destructive.” When antitrust law requires firms to compete in such circumstances, then “antitrust itself has seemed like a failure.” The government claimed that Apple conspired with book publishers, risking higher prices, but the case was perceived as a government favor to Amazon, which it was.

Indeed, people objected to the Apple case because it was ill-advised—limiting consumer choices and blocking lower prices. Appeals Court Judge Dennis Jacobs made this point, writing in his 2015 dissent that Apple’s conduct “immediately deconcentrated the e-book retail market, added a platform for reading e-books, and removed barriers to entry by others.” With Apple in the game, Amazon’s 90% market share fell to 60%. Now it’s back up to 83%, according to the latest industry estimate. As competition decreased, prices increased. The typical price for a Kindle best seller is now in the range of $14.95.

. . . .

The Apple case violated the first rule of antitrust: First, do no harm.

Link to the rest at The Wall Street Journal (Sorry if you encounter a paywall)

PG hasn’t read the book that is the subject of the WSJ review. However, the author of the review wildly misstates the purposes, activities and actions of Apple and all but one of the largest publishers in the United States.

Let us review the actions and actors in this matter (which were extensively documented and discussed on TPV during the days of yore):

  1. While Amazon was not the first entity to sell ebooks, it was the first to sell ebooks from traditional publishers at a substantial discount from their list prices, which correlated with the suggested list prices for printed versions of the same books.
  2. Amazon also was revolutionary in permitting self-published books (including ebooks) to be listed and sold side-by-side on the same basis as traditionally-published books.
  3. The six largest publishers in the United States – Random House, Hachette, HarperCollins, Macmillan, Penguin, and Simon & Schuster had developed a cozy little dinner group consisting of their CEO’s who met about every three months in a private dining room in Manhattan to talk about their mutual concerns – most often Amazon’s habit of discounting the prices of their books and what they could do about it. These six produced the majority of books sold in the US and were receiving complaints from their traditional bookstore customers about Amazon’s low prices. The publishers did not want to “cannibalize” their sales of printed books and were the recipients of a growing number of complaints from their traditional bookstore customers. No company attorneys were present during these dinner discussions.
  4. PG will note that private meetings of the top executives of large companies that dominate an industry to discuss the pricing of their products are almost always a bad idea and, by themselves, raise a big red antitrust flag. Competent corporate counsel would always advise against such a practice.
  5. Apple was planning to introduce its iPad in January, 2010, and include an iBookstore as one of the product’s attractions.
  6. PG notes that Apple has never been a fan of significant discounts for the products it sells.
  7. In December, 2009, Apple’s senior VP of Internet Software and Services, Eddy Cue, contacted the members of the Publishers dinner group to set up meetings.
  8. During these meetings, Cue said that Apple:
    1. Would sell the majority of e-books between $9.99 and $14.99, with new releases being $12.99 to $14.99, higher prices than Amazon was charging.
    2. Apple would use the same “agency pricing model” that it used in the App Store for ebooks.
    3. Agency Pricing allowed the Publishers control the retail price of the e-books with Apple receiving a 30% commission.
    4. Most significantly, Apple would require what is generically described as a “Most-favored nation” clause in its contracts with publishers that allowed Apple to sell e-book at the lowest price of its ebookstore competitors (read “Amazon”).
  9. PG doesn’t recall if the publishers had another private CEO dinner or not, but evidence at the later antitrust trial showed the Big Six publishers called each other over 100 times in the week before signing the Apple agreements. Everyone except Random House boarded this bandwagon.
  10. In January 2010, Apple held one of its typically flashy product launches for the iPad together with its associated ebook, music and video stores.
  11. During the post-launch mingling, Wall Street Journal reporter Walter Mossberg asked Steve Jobs why people would pay $14.99 for a book in the iBookstore when they could purchase it for $9.99 from Amazon. In response Jobs stated that “The price will be the same… Publishers are actually withholding their books from Amazon because they are not happy.” In other words, the publishers would force Amazon to raise its ebook prices to match those in the iBookstore.
  12. Amazon complained to the Federal Trade Commission and, rather than not being able to sell any ebooks of the major publishers, switched to the agency model after negotiations with the major publishers. This resulted in an average per unit e-book retail price increase of 14.2% for their new releases, 42.7% for their NYT Bestsellers, and 18.6% across all of the Publisher Defendants’ e-books.

For lots more information, see United States v. Apple on Wikipedia.

Back to the book reviewed in the OP, there was nothing wrong with Apple “introducing a new pricing structure” – agency pricing. Had Apple only done that, no antitrust violation would have occurred. However, when Apple conspired with a group of the largest publishers to force Amazon (and anyone else selling ebooks) to adopt agency pricing when such had not previously been the case, that was an antitrust violation, particularly in the light of what happened to ebook prices after the coordinated joint action took place.

Had the big publishers individually been willing to lose the highly-profitable ebook sales on Amazon as a potential consequence of telling Amazon it had to raise its prices and/or agree to let the publisher set the price, that would probably not have triggered any antitrust concern. Coordination between the publishers to use their combined power to force Amazon raise prices was where the publishers crossed a clear legal line.

With respect to what happened in the court case, each of the publishers admitted guilt, settled the antitrust claim and promised not to do any price-fixing in the future. Apple litigated the antitrust case to the max and lost at every stage.

Although Amazon was not a party to the litigation, Amazon won.

More significantly (in PG’s majestic and resplendent opinion), authors won. Indie authors in particular won. In June, 2010, a couple of years before any antitrust litigation had been commenced, Amazon introduced its 70% ebook royalty option which has put a great deal of additional money into authors’ pockets ever since.

The Messy Legal Fight to Bring Celebrities Back From the Dead

From Wired:

Last week, independent production company Magic City Films announced that it would be bringing James Dean back from the dead. Not literally, but digitally, using full-body CGI and existing footage and photos. The Rebel Without a Cause actor will become the secondary lead in a new Vietnam War film called Finding Jack. The two directors, Anton Ernst and Tati Golykh, said they searched for a suitable actor but, after months of research, Dean was chosen for the part.

The news has been met with a barrage of criticism from the Hollywood elite, with Chris Evans calling it awful and the lack of understanding “shameful,” while Elijah Wood just said “nope.” But James Dean isn’t the first entertainer to be digitally resurrected, and he certainly won’t be the last.

In 2017, Peter Cushing, who died in 1994, was brought back to life to reprise his role as Grand Moff Tarkin in Rogue One. Similarly, Philip Seymour Hoffman and Paul Walker, who both died during production of their respective films, were digitally re-created to finish their movies. Carrie Fisher was also famously digitally re-created for the ninth installment of the Star Wars saga.

On Tuesday, newly-formed IP licensing firm Worldwide XR announced that it holds the rights to more than 400 dead celebrities, actors, historical figures, musicians, athletes, and others. The lid of Pandora’s box has flung wide open, and we could be about to see a whole glut of dead celebrities reappearing on our screens.

. . . .

“We were being approached by some filmmakers who wanted to make their, movie and they wanted to hire James Dean,” says Worldwide XR CEO Travis Cloyd. “It was aligned with our objectives, and we did our vetting, and we read the script, and we talked it over with the family, and it just felt like it was a good time.”

Mark Roesler started CMG Worldwide in 1982 after finding that deceased celebrities had no one to represent them post-mortem. Roesler carved out a niche in representing the estates of dead stars, and the families of these celebrities began approaching CMG looking for representation. Elvis Presley and James Dean became the firm’s first two clients.

These representation rights give the company the “right of publicity” under the US-based state-by-state law, which is at the heart of dead celebrities’ image rights. The right of publicity was enshrined in Californian state law in 1985 and declares that the rights to use a celebrity’s image, including their voice and likeness, will be transferred to the deceased actor’s estate once that actor passes away, with any money from licensing going to the estate. Anyone wanting to use that actor’s image must gain permission from the actor’s estate.

Link to the rest at Wired