8th Circuit Appears Divided in Dryer v. NFL Oral Arguments

By Professor Jennifer Rothman

This commentary originally appeared on the website, Rothman's Roadmap to the Right of Publicity.

The oral arguments from last Thursday’s hearing before the 8th Circuit in Dryer highlight a host of flashpoints in right of publicity law. The arguments focused on whether the use of historical film clips constituted commercial speech.  The plaintiffs’ attorney claimed that the use by the NFL was clearly commercial speech and therefore not entitled to First Amendment protections, citing the 7th Circuit decision in Jordan v. Jewel Food Stores (2014). In Jordan, however, the parties had conceded that the commercial speech question decided whether there was any First Amendment protection in the context of a Lanham Act claim and the appellate court expressed rightful skepticism of that conclusion.  The oral arguments here highlight the confusion over how to categorize and distinguish commercial speech from for-profit commercial uses, like films, news, and sports broadcasts, as well as marketing for the same.  The plaintiff is correct that the broadcasts in Dryer undoubtedly drive good feelings and income to the NFL through game attendance, merchandise, and its entertainment and broadcast programming, and related advertising revenue. This, however, does not make the broadcasts commercial speech, nor does it remove First Amendment protection even if it is commercial speech.

The second right of publicity flashpoint addressed was copyright preemption and whether the players’ agreement to appear in the underlying sporting events prevented subsequent right of publicity claims arising out of a derivative work using those broadcasts. The defense attorney distinguished the uses at issue from using a player’s image on a coffee mug, because in such an instance the likeness of the player would be extracted from the underlying copyrighted work and repurposed.  Under copyright law this is a difference without meaning, although the argument may otherwise seem appealing and perhaps has more traction in a conflict preemption analysis then a section 301 analysis.

The final right of publicity conundrum addressed in oral arguments was the scope of the newsworthiness defense and what counts as newsworthy under the various state laws at issue.  One judge on the panel questioned whether an old football game counted as “newsworthy.”  Such a narrow interpretation of what is newsworthy would be catastrophic for documentarians, journalists, and other creators who often delve into past events.  The arguments also touched upon the question of whether the demonstration via survey evidence of some possible confusion was enough to overcome judgment as a matter of law on the false endorsement Lanham Act claim.  The full arguments can be heard here – Oral Arguments, Dryer v. NFL, Oct. 22, 2015 (8th Cir.)

Beyonce, Pharrell, Rihanna, Jay-Z, and Kanye West Sue Over Use of their Images and Names on Merchandise

By Professor Jennifer Rothman

This commentary originally appeared on the website, Rothman's Roadmap to the Right of Publicity.

These megastars sued Eleven LLC for using their names and images in a variety of merchandise, including t-shirts, hats, and cell phone covers. Some of the images evoked Hitler and some of the items used lyrics from the artists’ songs...Look for a settlement in this one.
Looks like promising claims as to false endorsement and right of publicity.  Somewhat less convincing is the defamation claim from adult-oriented models that association with the strip club would subject them to “hatred, shame, . . .ridicule, aversion, ostracism, degradation . . . and/or could induce an evil opinion of Plaintiffs in the minds of right-thinking persons, and/or could deprive each Plaintiff of confidence and friendly intercourse in society.”  Perhaps the complaint itself defames adult entertainers.

Greene was featured in convicted felon Jordan Belfort's memoir upon which the Martin Scorsese movie was based. The movie, however, did not use the plaintiff's name or likeness, but instead created an amalgamated character derived from several real individuals, including the plaintiff. The court therefore rejected Greene's claim because under New York’s privacy statute, N.Y. Civil Rights Law § 51, such claims are limited to uses of the actual name or likeness of an individual. Merely evoking the person’s identity is not sufficient to state a claim.  This treatment of the privacy-based right under New York law differs from the interpretation of right of publicity laws in some other states, notably under California's common law.

Justice Illuminates Criminal Discovery

By Professor Laurie L. Levenson
This book review originally appeared in the Oct. 9, 2015 edition of the Daily Journal.

Who knew that someone could make California discovery law easy to follow? But Justice Brian Hoffstadt has done just that. In his recent book, “California Criminal Discovery” (5th ed., Matthew Bender, 2015), Hoffstadt has provided a comprehensive guide to California’s discovery laws. It is an amazing guide to the statutory and case law obligations of both prosecutors and defense counsel in California.

The book could not have come at a better time. Despite the fact that judges have noted the epidemic of discovery violations in the land, California prosecutors continue to fight against reforming California’s ethical rules to comport with the standards set forth by the American Bar Association in its rules of professional conduct. There is a desperate need for guidance on discovery obligations for both prosecutors and defense lawyers. Hoffstadt seeks to tackle that challenge.

Doctors Without Borders Strike a Tragedy, Likely Not a War Crime

By Professor David Glazier

As tragic as the strike on the Médecins Sans Frontières (MSF) hospital was, it is extremely unlikely to constitute a war crime -- at least under the definitions found in the Rome Statute of the ICC -- regardless of whether the conflict is characterized as an International Armed Conflict (IAC) or Non-International Armed Conflict (NIAC). It is important to note upfront that in the "real world" (and by that I mean everywhere in the world except the Guantanamo military commissions) it is recognized that the law, and more specifically the conduct which falls within the scope of recognized war crimes, differs, by conflict type and thus conflict classification is a required element of proof. The Rome Statute, for example, defines 34 war crimes recognized in IAC (Art 8, sections 2(a) and (b)), but only 19 for NIAC (Art 8, sections 2(c) and (e)).

Deliberately attacking civilians, or a protected facility such as a hospital, is a war crime in both IAC and NIAC. But conviction requires demonstrating both knowledge of the protected status and a deliberate decision to attack it nevertheless. What is more likely to be the case here is that either (1) through some sort of procedural error or negligence, in the heat of the moment of the attacks, either or both the folks on the ground calling in air support, and the aircrew, failed to note the protected status of the facility; or, (2) the folks on the ground were receiving sufficient incoming fire from the hospital grounds that they (and/or the aircrew) decided that it had been converted into a legitimate military object by this misuse and lost its protected status.

In either of these cases, the U.S. participants would lack the requisite mens rea to be convicted of a deliberate attack on protected objects or persons.

Prof. Lazaroff's Law Review Article Cited in Pivotal Opinion

Professor Emeritus Dan Lazaroff’s law review article, “The NCAA in Its Second Century: Defender of Amateurism or Antitrust Recidivist?” from the Oregon Law Review is cited in the U.S. Court of Appeals for the Ninth Circuit's opinion in O’Bannon v. NCAA.

The NCAA began to strengthen its enforcement capabilities in 1948, when it adopted what became known as the “Sanity Code”—a set of rules that prohibited schools from giving athletes financial aid that was based on athletic ability and not available to ordinary students. See Daniel E. Lazaroff, The NCAA in Its Second Century: Defender of Amateurism or Antitrust Recidivist?, 86 Or. L. Rev. 329, 333 (2007). The Sanity Code also created a new “compliance mechanism” to enforce the NCAA’s rules—“a Compliance Committee that could terminate an institution’s NCAA membership.” Id.

Professor Emeritus Dan Lazaroff commented on this landmark decision in publications like the The Los Angeles Times, Pittsburgh Post-Gazette, Inside Higher Ed., and The Daily Journal.

4th Annual US-China IP Conference 2015

Loyola Law School, Los Angeles, Berkeley Center for Law & Technology, and Renmin University of China Law School organized the fourth annual US-China IP Conference to compare developments and trends in two countries critical for any IP creation and protection strategy. Leading scholars, government officials and practicing lawyers from China will join US experts to examine vital current topics including: new trends in transnational technology investment, developments in copyright, and cross-border IP enforcement.

Professor Seagull Song and Director of the Asia-America Law Institute, Professor Justin Hughes, and Professor Jeffrey Atik will be speaking at this event.

Year in Review: Top Chinese Entertainment Law Cases between 2014-15
The year of 2014 has been a fantastic year for Chinese film market. China became the second largest box office in the world, right behind the U.S. In same year, we also witnessed a significant increase in entertainment law cases filed, argued and decided by Chinese courts, covering issues ranging from copyright infringement, trademark, anti-unfair competition, to privacy, right of publicity, defamation, labor law, and of course, contract disputes. This presentation will discuss some top Chinese entertainment law cases decided during the same period of time and addresses key issues of significance to the Chinese entertainment industry. They range from idea/expression dichotomy, movie title protection, director credit, movie revenue sharing, and the balance between privacy and freedom of speech.

Recent Developments on Copyright: Legislation and Cases
As part of a panel discussing recent developments in U.S. copyright law, Professor Hughes discussed the Ninth Circuit's recent Garcia v. Google decision as well as movements in Washington toward ratification of the Beijing Treaty on Audiovisual Performances (2012) and the Marrakesh Treaty for the Blind (2013).

Specialized IP Courts
An almost all-EU patent court is the institutional centerpiece of the new EU 'unitary' patent system. The new court, to be known as the European Unified Patent Court, will have jurisdiction over all invalidation and infringement actions involving patents issued by the European Patent Office that are designated to have 'unitary effect,' that is effectiveness within the great number of EU states participating in the new scheme. The substantive patent law to be applied by the new court is an awkward amalgam of European, treaty and national law - and the national law is determined largely by the formalistic presence of the patent applicant in a particular EU member state. Atik's presentation explores the various sources of this new (and variegated) substantive patent law, and the hierarchical relationship of its various elements.

The conference will be held at University of California Berkeley on October 8-9, 2015. Click here to register.