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30 According to a Kardashian “insider,” plaintiff brought suit because “she’s a businesswoman who has to protect her brand.”31 Brand protection, though, is not a cause of action. Kardashian.45 The doll manufacturer, a company called Pipedream Products, Inc., has apparently created other “blow-up” sex dolls modeled after celebrities, including Lady Ga-Ga. Scripps- Howard Broadcasting, Inc.,74 focused on two aspects—performance rights and 70 See Campbell Roberson, Family Maid Files Suit Against the Author of the ‘The Help’, N. All the reality TV stars, the Snookis and The Situations — do they have a performance besides getting drunk and acting lewd and rude? Sony Music Entertainment, Inc., 448 F.3d 1134 (9th Cir. Oliveria sued for trademark infringement, asserting that use of song falsely implied her endorsement, and for right of publicity violations under New York law. 89 Ginger Rogers, Gina Lollobrigida and most of all, Marilyn Monroe.91 In reviewing the many sources from which Madonna “borrowed” (charitably) to craft her image, one that she constantly “reinvented”, it is hard to say there is anything original.

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Other forms of IP have impacted the central issue of race in America in other ways. 5 In 2011, Cadbury ran an advertisement with tagline: “Move Over Naomi—There’s a New Diva in Town”, referring to supermodel Naomi Campbell, a black woman. 8 See John Tehranian, Infringement Nation: Copyright Reform and the Law/Norm Gap, 2000 UTAH L.

Scholars from Madow to Dogan and Lemley have set forth the litany of analytical woes that plague publicity right law.17 The incentive theory that underlines patent and copyright law has come under harsh attack in the publicity context. Lemley, What the Right of Publicity Can Learn from Trademark Law, 58 STAN L. 1161 (2006); See also Michael Maddow, Private Ownership of Public Image: Popular Culture and Publicity Rights, 81 CAL L. Madonna is a prime example (and yes, the author is a huge fan of the Material Girl).

Putting that aside, what is it that bothers us academics about the right of publicity? As Professors Chander and Sunder note, an automatic presumption that an unfettered public domain 80 See Oliveira v. On closer examination, however, we can pick any number of celebrities whose personas are “constructed”, to borrow from Professor Kwall, on the labor of others. African-American blues artists demonstrate a concrete example Sunder and Chander’s concerns—as I have said elsewhere, that in regards to “blues artists particularly, it was almost as if their work—some of the most innovative, original and imaginative artistic work ever produced in America—was, use a legal term of art ‘in the public domain’, i.e., freely usable by anyone.” Greene, Copyright, Culture and Black Music, supra, note 2 at 368.

It’s impossible to deny that Luke Skywalker, Han Solo and Princess Leia are three of the most important movie characters ever created, as you can check the cosplay out at any Comic-Con, Mega-Con, Super-Con and Conny-Con-Con for a reminder of just how special they and the rest of the characters in the universe are to millions of people.

But when it comes down to it, you’d also have a hard time arguing that Princess Leia’s different costumes don’t rule them all.

28 David Tan, Affective Transfer and the Appropriation of Commercial Value: A Cultural Analysis of the Right of Publicity, 9 VIR. As Professors Ochoa and Welkowitz cogently demonstrate, publicity rights “create difficult problems for freedom of expression.”37 Whether it is J. Same for Electronic Arts use in a video game for a “muscular African American player wearing the number 32 on the All Browns team.”47 There is a rather 39 See Drake Bennett, Star Power: Celebrities have a legal right to prevent the commercial use of their images without permission. Similarly, Astrud Oliverira, who recorded under the name Astrud Gilberto, was upset when Frito-Lay used the iconic song, “The Girl from Ipanema” with a Miss Piggy voice-over in a commercial for potato chips. As Eric Farber notes, Lady Miss Kier “had a distinctive style…combining retro and futuristic looks with signature platform shoes, knee-socks, unitards, short pleated skirts…and sporting a bare midriff and backpack”.81 Her signature phrase in the hit song was a sexy “Ooh-la-la”. Cooper, Publicity Rights, False Endorsement, and the Effective Protection of Private Property, 33 HARV. The backlash to overreaching IP enforcement is one that IPR holders disregard at their peril, particularly in the on-rushing age of remix culture, as what is left of what used to be the music industry has learned.

Jennifer Lopez and Mark Anthony filed suit alleging appropriation of likeness against a baby carriage maker that used a photo of the formerly happy couple on its website to promote sales.33 “The Naked Cowboy,” that guy who sings in Time Square in his underwear, sued Mars Corporation, maker of M&M’s, for right of publicity appropriation because Mars depicted a blue cartoon M&M in drawers with a guitar in an advertisement.34 Less recent cases pit Tiger Woods against a painter for depicting Tiger’s image in a painting35, and my old client, Spike Lee, going after Viacom for its use of “Spike TV.”36 What bothers us in many of these cases is that the celebrity seems to be overreaching by claiming property in identity that causes neither economic harm nor harm to personality. 2003) (Woods lost the right of publicity suit on First Amendment grounds). Similarly, it is hard to feel sympathy for a company like Activison when it gets hauled into court for overreaching a contract and using avatars to manipulate songs from artists lik No Doubt46 or Maroon 5 lead singer Adam Levine beyond the scope of the license. The court dismissed her right of publicity claim, finding that it was preempted because Laws was in essence challenging the sound recording. Laws, has no rights to her voice or control over how it might be used in a composition. 77 See John Russell, The Kardashian Phenomenon- Talentless, Trashy Sisters take ‘Created Celebrity’ to New Heights, L. Kierin Kirby was better known as Lady Miss Kier, the singer with fabulous dance moves behind the hit song “Groove is in the Heart” by the 1990’s group Dee-Lite. “Copynorms,” Free Information and the Remix Culture Clash One of the negative effects of over-aggressive assertion of publicity rights is the creation of a general disrespect for IPRs in the community of consumers.This essay focuses on the issue of performance rights—or lack thereof for artists generally and black artists in particular. Lemley, What the Right of Publicity Can Learn from Trademark Law, 58 Stan L. 1161 (2006); See also Michael Maddow, Private Ownership of Public Image: Popular Culture and Publicity Rights, 81 CAL L. Like other Intellectual Property Rights (“IPR”), the right of publicity has the potential to shrink both the public domain and the marketplace of ideas, thus preventing the dissemination of informational and creative works. news these days, between casting rumors, Chewbacca’s behind-the-scenes photos (above) and JJ Abrams announcing that his script is finished so that Yoda might hear the figurative orgasms of millions of faithful fans.But one little nugget that slipped by almost unnoticed last week was the news that Carrie Fisher, Harrison Ford and Mark Hamill are all ready to report to work starting in March or April to reprise their iconic roles for the first time since a lot of us were in diapers. The importance of publicity rights has only increased as society has embraced the era of “the brand.” As Professor Kaytal explains, “brands permeate the fabric of our lives—they help us construct our identities, our expressions, our desires, and our language.”25 Corporations seek to “become definable personalit[ies]”to combat the “public perception of a corporation as a cold impenetrable entity…”26 Professor Perzanowski notes that corporations “take branding seriously” as we might expect they would given the billions expended and the cumulative trillion value of the top one hundred global brands.27 Following that trend, individuals —stars— have now become brands in and of themselves. 32 See Amy Andrews, Lindsay Lohan Sues E-Trade for 0M Over Milkaholic Boyfriend-Stealing Baby Ad, ABC News, Mar. The court conceded similarities between Kirby and the “Ulala” character in the video game, but concluded since Kirby did not have a “singular identity” there was likely no common law publicity claim.83 In any event, the court found the Sega character was sufficiently transformative to dismiss the case. : Social Networking and the Right of Publicity, 12 VAND. The industry’s overresponse - mass litigation against digital file-sharers — has likely done more to instill contempt by youth for IP laws than to stem the tide of downloading. 90 negative perceptions of IP law, and disrespect for it.

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