Protecting The Brand: Katherine Heigl Sues Duane Reade To Protect Her Publicity Rights

Katherine Heigl has never been a lovable celebrity. Throughout her career, she's bad-mouthed her projects and coworkers to such a degree that Hollywood and the public have largely turned on her. Some have even dubbed her "Hollywood's Most Hated Actress." Lately, it appears she's taken a page out of Sheryl Sandberg's playbook and is leaning in to that title; last week she sued NY-based drugstore chain Duane Reade for $6 million after they tweeted a picture of her leaving one of their stores after shopping there. If she wins, she plans to donate that money to charity... her own charity.

To be sure, this lawsuit isn't going to win her any fans. But then it's not really designed to; it's designed to protect her publicity rights. And using that as a guidepost, Ms. Heigl may actually have a point. Here's the tweet in question:

Heigl's complaint alleges violations of the Lanham Act (the law governing trademarks) as well as New York Civil Rights Laws Sections 50 and 51 (which govern privacy). I'm not going to address the trademark issue here because she would have to prove that Duane Reade's use of her picture would likely confuse the public into assuming she was affiliated with Duane Reade. I just don't think the facts are compelling enough to make that claim (the average person will not conflate shopping at a store with endorsement of it). As I see it, this case is more likely to turn on the privacy issue anyhow.

Section 50 of the NY Civil Statutes says that:

A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.

That kind of says it all, doesn't it? The image of a person (famous or not) cannot be used in advertising without their consent - which Ms. Heigl obviously did not give. In common law, this would be referred to as "appropriation of likeness" which is considered one of four privacy rights. So does the tweet count as advertising? Based on the nature of the tweet and the wording, I think a convincing argument can be made. After all, why would Duane Reade tweet that picture if there wasn't a business motive behind it? It's not like the picture was taken by an awe-struck fan... the picture was taken by a paparazzo which was then used by a corporation whose message on Twitter and Facebook was clearly that "Ms. Heigl is a patron of our stores."

Even still, this infraction seems relatively harmless... certainly not worthy of $6 million of Heigl's wrath. And it does raise some questions about the nature of publicity rights as used by celebrities. On the one hand, social media has made it difficult for people to know where the line is between advertising and simply pointing out "here's a celebrity!" While I think the tweet counts as advertising, I could be convinced otherwise with some clever lawyering. There are also First Amendment questions at stake - can a corporation never tweet a picture of a famous patron? Is such a tweet automatically advertising by its nature? And would banning those types of tweets violate the right to free speech? On the other hand, celebrities rely on their images to get work, and having that image appropriated for a use they never approved could result in a loss of work or even ruin business relationships (e.g. what if Ms. Heigl just worked out a deal to be a spokesperson for CVS? The tweet of her shopping at a competing drugstore could destroy that deal).

I know, I know. It's hard to care about how Duane Reade's tweet may negatively impact Ms. Heigl. That's the level of damage she's done to her personal brand. And this lawsuit, however justified, doesn't do anything to help her image. For her sake, I hope she realizes that legal protection of a brand is not the same thing as public protection. The former is fine, but if she wants to continue acting, it will be crucial for her to work on the latter.

When Rowling Met Galbraith: How An English Lawyer Broke The One Unbreakable Rule All Lawyers Must Follow

This past April, a former military police officer named Robert Galbraith released his debut novel, The Cuckoo's Calling to stellar reviews but terrible sales, selling only 1500 copies. As sales floundered, a British lawyer named Chris Gossage confided to his friend Judith Callegari that Galbraith wasn't a real person, but was in fact the pseudonym for J.K. Rowling, the most famous author in the world. Callegari then did what most of us would do when handed such a world-shattering piece of gossip - she blabbed to anyone who would listen, including a reporter. With the cat out of the bag, sales of Cuckoo skyrocketed to #1 on Amazon.

It's not hard to see why Rowling would do this. As wealthy and successful as Harry Potter made her, the pressure to rebel against typecasting must have been overwhelming. Following the release of Deathly Hallows in 2007, she sought to distance herself from the world of magic by writing a novel for an adult audience. The result was The Casual Vacancy, a thriller which sold like gangbusters, but was panned by critics. I imagine she took a great deal of satisfaction knowing that while Cuckoo wasn't popular when everyone thought Galbraith had written it (it's not like she needed the money), it found love from the very people who felt she could never write a book that wasn't aimed at children. She admitted as much on her website, saying that it was nice to be able to publish "without hype or expectation." So while Rowling was displeased with her identity being leaked, she had still proven her point.

Not everything worked out so well for Gossage though, a partner at the firm that represented Rowling. She sued the firm because he breached the inherent confidence present in the attorney-client relationship (which usually applies to the whole firm even if Gossage himself wasn't representing Rowling).  Even worse, he was just slapped with a fine by the Solicitor's Regulation Authority (the organization that oversees attorney ethics in England) for violating a client's trust.

Regardless of which side of the pond you live on, attorney client confidentiality is a pretty big deal. In most cases, by the time a client seeks the aid of a lawyer, a crisis has happened and the client is often in the midst of a deep personal anxiety. Not only are they emotionally fragile, they are dealing with issues that might require the divulging of sensitive information. Anything from sexual abuse, to financial indebtiture, to murder is on the table, and needs to be discussed frankly in an open and safe environment. If the client can't feel comfortable discussing these issues, then the lawyer can't give the best legal counsel he or she has sworn to provide.

That trust is so important that every country with a judicial system has a rule protecting attorney-client confidentiality. In Massachusetts, where I practice, Rule 1.6 of the Rules of Professional Conduct states that:

A lawyer shall not reveal confidential information relating to representation of a client unless the client consents after consultation.

Without the client's express consent, a lawyer can only reveal confidential information in certain limited circumstances:

1. If it would prevent someone from sustaining substantial bodily harm or death,
2. To obtain legal advice about ethics,
3. To defend himself against allegations of legal misconduct, or
4. To comply with another law or court order.

All 50 states have a rule like this. Depending on the severity of the violation, a lawyer can be punished with fines (as Gossage was), disbarment, or even jail time. Most lawyers take client confidentiality very seriously, not just out of fear of punishment by the local examining board, but because it's the right thing to do.

Every American law student knows the tale of Frank Armani and Francis Belge, two American lawyers who represented Robert Garrow, who was accused of murdering Philip Domblewski in 1973 while Domblewski was camping in the Adirondacks with friends. During a consultation with Armani and Belge, Garrow not only admitted to killing Domblewski, he admitted to murdering and raping several other people. Garrow told them where he dumped the bodies, and his story was confirmed when Armani and Belge personally went to those sites to investigate and photograph the remains.

But because Garrow was their client, Armani and Belge couldn't tell the family members of the deceased where the bodies were.  In fact, Armani and Belge kept silent for nearly a year, despite intense public pressure (they finally disclosed what Garrow had told them after Garrow admitted to the murders during trial). Because they had taken an oath to protect their clients' confidences (no matter how reprehensible), Armani and Belge were not able to discuss what Garrow told them without incurring potential legal repercussions.

In the grand scheme of things, the £1000 (about $1600) Gossage was fined amounts to little more than a slap on the wrist. Gossage claims that he himself is a victim of betrayed confidence, believing that Callegari would keep the secret. Regardless of his excuses, Gossage just learned a valuable lesson about talking out of school, especially when the client is as well-known as Rowling. He should count his lucky stars that she's a world-famous billionaire author, and not a psychotic rapist killer like Garrow.

Ellen Page And The Strange Case Of The Misappropriated Likeness

It’s been a weird couple of months for Ellen Page, the elfin actress behind Juno. A few months ago, her likeness was stolen for the hit video game The Last of Us. Now, a video game that she actually participated in and lent her likeness to, Beyond: Two Souls, has featured her in a digital nude shower scene, pictures of which leaked without her consent, and which show the whole shebang.

Let's talk about The Last of Us first. Back in June, the video game made a splash, and not just because it was a critical hit. One of the game's main characters, Ellie, looked suspiciously like Page, so much so that people were asking Page if she acted in the game (she didn't). In fact, early concept art of Ellie art didn't just resemble Page, it was clearly her face.  Behold!

The one on the left is the concept art of Ellie and the middle is the version of Ellie that appears in the game, altered to look less like Page. If you're not convinced by these side-by-sides, just google "last of us ellen page" and you'll see comparison after comparison. What's striking is how even after the developer, Naughty Dog, changed Ellie's appearance, she pretty much still looks just like Page.

Anyway, Page caught wind of this and instead of suing the pants off Naughty Dog, she said this:

I guess I should be flattered that they ripped off my likeness, but I am actually acting in a video game called Beyond: Two Souls, so it was not appreciated.

Naughty Dog is pretty lucky Page isn't lawsuit-happy because she has a solid case for Appropriation of Likeness, a tort that prohibits the use of someone's name or likeness for commercial purposes without their consent (in California, name and likeness are actually protected by statute - California Civil Code Section 3344(a)). If she decided to sue, she could put Naughty Dog out of business.

So now we arrive at Beyond: Two Souls, the game that Page actually participated in by doing the voice and motion capture (see pic above) for her character. At one point, the game features a scene with digital version of Page's character taking a shower, all of her lady parts tastefully obscured. Unfortunately,  pictures from a developers-only version of the game leaked out, showing those lady parts in their entirety (Page, of course, did not pose nude for this scene. She filmed her role wearing a mo-cap suit - a leotard fitted with digital nodes that capture her movement).

Who's to blame? The game's developer, Quantic Dream, seems like the obvious target since it made the nude model to begin with; without the model, this controversy would never have arisen (in the law, we call this "direct causation"). But Quantic Dream claims that it made it impossible to view the model's lady parts within the course of normal gameplay. Their story is that an unauthorized developer took the model and filled in the blanks, as it were. So is Quantic Dream off the hook because someone found a way to view that model in an unintended way? And even if Quantic Dream was the right party, could Page sue the company for Appropriation of Likeness? She did permit the use of her face, after all, but does her "likeness" extend to her other features? Consider also that since Page didn't actually pose nude, all the "blanks" that were filled in by the unauthorized developer were done from imagination - does that alter the analysis? At this stage, it's unknown whether Page had an anti-nudity clause in her contract, and whether a 3D rendering of her body would qualify for the purposes of an Appropriation claim (there's some case law indicating that it might qualify). Basically, there are a lot of unknowns.

Here's what makes the whole thing even more fascinating: Sony, Beyond's distributor, is also the distributor for The Last of Us. This puts them in an awkward situation vis-a-vis their relationship with Page. Twice in one year she's become a victim of a high-profile game they released.  And once the pictures are out in the world, they're out there; there's no getting them back.

It'll be interesting to see if Page decides to pursue the matter legally. In the meantime, I'm sure she's learned her lesson: no more video games with Sony.

Robin Thicke Sues Marvin Gaye's Family To Prevent Being Sued By Marvin Gaye's Family

John F. Kennedy once said that "victory has a thousand fathers, but defeat is an orphan."  This is never more true than in the entertainment world, which is why Robin Thicke, Pharrell Williams, and T.I. (aka Clifford Harris Jr.) have decided to sue Marvin Gaye's family and Bridgeport Music in order to deny their parental rights to Blurred Lines.

The Gaye family claims that Blurred Lines ripped off Marvin Gaye's Got To Give It Up, and they're demanding a substantial monetary payout.  If they don't get it, they'll sue for copyright infringement.  In response to the threat of legal action, Thicke preemptively sued them and is seeking a declaration from the court that Blurred Lines doesn't infringe Got To Give It Up.

Before we go any further, listen to both songs and compare for yourself.

Here's the SFW version of Blurred Lines:

[youtube=http://www.youtube.com/watch?v=yyDUC1LUXSU&w=560&h=315]

And here's Got To Give It Up:

[youtube=http://www.youtube.com/watch?v=fp7Q1OAzITM&w=420&h=315]

The lawsuit also contains allegations by Bridgeport Music that Blurred Lines plagiarized Funkadelic's Sexy Ways:

[youtube=http://www.youtube.com/watch?v=JxKOQ3SfGhg&w=560&h=315]

Now I consider myself something of a musical ignoramus, but even I can tell when one thing sounds like another thing.  While there are some similarities between the songs, primarily because of the up-tempo beat, I think it's pretty clear that Blurred Lines is a wholly separate entity.  Which means no infringement took place because copyright law doesn't protect individual elements of a work when those elements are commonly used in an industry or genre (known in the legal biz as "scènes à faire").   So in the hip-hop/R&B world, where uptempo bass-heavy beats are the norm, that similarity by itself would not be enough to constitute copyright infringement.  There would have to be greater similarities between the songs in the lyrics and melody for a court to find some form of plagiarism.

So, if Thicke isn't in danger of losing an infringement case, then why did he sue the Gaye family in such an aggressive fashion, especially after stating in his complaint that he has the "utmost respect for and admiration of Marvin Gaye, Funkadelic and their musical legacies"?  Certainly Thicke and his partners aren't content to share the glory with 997 other fathers.  Blurred Lines is THE most talked about song of the summer.  It's a legitimate phenomenon.  Why should they share the substantial revenues they'll accrue with another artist?  Even if that artist inspired them to begin with?

But I actually think this lawsuit is less about money than about sending a message.  See, Blurred Lines is a real winner, and if Thicke can be bullied into settling out of court for several hundred thousand dollars in order to avoid a long and costly trial... well that's a pretty easy way to make a few bucks.  Sadly, this type of thing isn't uncommon in the entertainment world.  In fact, it's downright mundane.

"Your hit song/TV show/movie has something vaguely in common with my lesser known song/TV show/movie and if you don't pay me, I'll tie you up in litigation for years."

It's a very common tale.  My guess is that Thicke decided to take the fight to the Gaye family to show that he can't be bullied.  Will this type of preemptive lawsuit work or will a judge dismiss it and basically tell Thicke to wait until he gets sued?  I have no reason to believe it won't have the desired effect.  If it does, I think you'll see a lot more of these preemptive lawsuits.  If it doesn't, the moral of the story will remain the same: you can't be a hit without people bleeding you for everything you're worth.

Protecting The Brand: Beyonce Knowles vs. The First Amendment

Remember when Beyoncé performed during the Super Bowl halftime show and this hilarious meme-birthing picture was taken?

And then she flipped out and tried to have it scrubbed from the entire internet?  Well, three months later and Queen Bey is back at it.  She's currently on her Mrs. Carter Show World Tour and she completely banned outside photographers, while releasing only pre-approved flattering pics to various news outlets.  Beyoncé's goal  is to have total control over her image, so instead of newspapers and websites running photos of her looking like She Hulk, she'll instead look like this:

Reasonable minds can argue whether the kind of control she's attempting is even possible in the internet age (hint: it isn't).  But I'm more curious about the effect that this kind of totalitarianism will have on her brand.  The conventional wisdom is that Beyoncé isn't doing herself any favors by limiting press access to her and having relentless control over the pressers that do get access.  On the face of it, it makes her seem out of touch with reality.  But is that harmful to her brand?  I'm not so sure. The people who love Beyoncé are already convinced of her beauty, talent, and semi-royal status and are willing to write off the unflattering pics as aberrations.  And the people who don't love her?  Well they certainly won't be convinced by these autocratic methods, but I don't think she's trying to win them over anyway. Beyoncé knows herself and her audience, and as long as they keep her rich and famous, that's probably enough.

I've seen it argued that Beyoncé's grasp on her self-awareness is tenuous at best if she thinks she can control her image to this degree, but I would argue that she's read the situation better than we giver her credit for.  After all, she hasn't sued anyone to take down the unflattering pictures (to my knowledge, she only sent polite email requests to various outlets), and that fact tells me that she knows where the line is between egomania and villainy and she's not willing to cross it.

So my guess is that while this probably won't make her MORE popular, her brand is as safe as any celebrity brand can be.  But I say that with one caveat: she should avoid alienating the press, because they're the ones who can bring about her destruction.  If you've seen Beyoncé in interviews - as well as the remarkably self-serving HBO documentary she directed about herself - it's clear that she is a person of extreme self-confidence.  And the confidence she has in her abilities has driven some of the press to turn on her and lose their own grasps on reality.

In particular, the National Press Photographers Association.  They're claiming that the restrictions placed on them by Beyoncé and her management team is preventing them from doing their jobs, and that violates the First Amendment.   No, sorry fellas.  I understand that you're angry at having your access to Beyoncé cut off, but the First Amendment isn't applicable here.  Constitutional Law 101 tells us that the First Amendment only prevents the federal government (and state governments through a process known as incorporation) from restricting your freedoms of speech, press, religion, etc.  It says nothing about whether a person or organization can restrict your First Amendment rights... because they can!  Behold the text of the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

As you can see, not a word leading you to believe that individuals (like Beyoncé!) or corporations (like Beyoncé!) can't place restrictions on the press at events.  In fact, all of the Amendments in the Bill of Rights are there to prevent the government from limiting your rights.  But they apply only to the government.  So while Beyoncé's ban on photogs at her concerts may not be the best PR move, there's no legal reason she can't do it.

Topless Celebrity Photos! Or How To Get Sued Like A Paparazzo

A few weeks ago, I wrote this piece about how artists own the copyright to their work even after they've sold the physical manifestation of that work (i.e. retaining the copyright over a painting even after selling the physical painting to a buyer).  The post generated a lot of interest and in the ensuing discussion, I got several variants of this question:

"If I take a topless photo of [Hot Celebrity Female] at a secluded beach, can she interfere with my ownership over that photo and prevent me from mass producing it and make a mint?"

As with everything in the law, the answer is a resounding "kind of!" Hot Celebrity Female can indeed interfere with your ability to profit from selling topless photos of her to a tabloid... but not through manipulation of copyright ownership (which, I presume, is what the question was really asking). When the subject of your art is another person, they cannot interfere with your ownership of the copyright, nor can they claim ownership rights over that photo simply because they are the subject.  The copyright is vested only in the artist except in these three scenarios:

1. Sale of the copyright to another (i.e. selling the photo and copyright to TMZ)
2. Conveyance of the copyright through a bequest or gift (i.e. giving the photo and copyright to a family member or friend)
3. Certain work for hire situations (usually on projects that require collaboration, like films)

"But," you might ask, "don't celebrities have ownership rights over their personal appearances?"  Nope.  Neither copyright nor trademark law offer protection over your personal appearance.  Trademark law DOES allow you to register many other visual elements such as logos, symbols, patterns, designs - but your personal appearance is not granted any protection under the intellectual property laws of this country.  This means that, unless you sell or gift the copyright, or the copyright isn't yours to begin with, there's really nothing that Hot Celebrity Female can do to interfere with your ownership.  If you are inclined to do so, you are free to take a highly compromising picture of her and sell or license that copyright to TMZ, The Daily Mail, The New York Post, and any other publication that profits from the exploitation of celebrity culture.  You'll probably make a small bounty doing that and in fact, there's an entire group of professional photographers who make their living precisely this way: the paparazzi.

But that's not the end of the story.  Owning the copyright to topless photos of Hot Celebrity Female does not give you an unassailable right to do whatever you please with those photographs.  Even though she has no ownership rights over the photos, she can still take you to court in a big way.  Everyone - from the lowliest plebe to the most glorious celebrity - has a right to a certain degree of privacy, and tort law provides several tools that allow people to fight an invasion of that privacy.

One of the more potent tools that celebs like to use is something called "appropriation of name or likeness."  An appropriation of name or likeness is considered an invasion of privacy when a person uses your name or likeness  for commercial purposes without your permission.  So when you take a compromising photograph of a celebrity, especially in locations where they have a certain expectation of privacy, you open yourself to liability.  That's why paparazzi and the magazines they sell to get sued ALL THE TIME.  Usually, if the celebrity is in a public place, like at a restaurant or on a red carpet, there's little they can do to fight publication of that image, so an appropriation of likeness claim won't go very far.  But when the photo is snapped in a private location (like in their backyards or on a balcony at a remote resort in the rain forest), you could end up losing all the money you made from selling that picture.  Remember last fall when some paparazzo snapped photos of a topless Kate Middleton on a secluded balcony using a telephoto lens? Do you remember the Royal family suing the french magazine that published them?  The magazine lost that battle because Princess Kate wasn't photographed topless at a public beach... she was on a private balcony that was obscured by tree cover.  The only way the photographer was able to get those photos was by using the kind of lens usually reserved for NSA spy satellites.

So the moral of the story... Hot Female Celebrity can't take away your ownership over that photo you took of her.  But she can, in some situations, prevent you from making money off of it.  You, as the photographer, have to decide whether all that trouble is worth it just to catch a glimpse of Kate Middleton's boobs.

Quincy Jones: Steve Wynn Did Not Threaten to Kill Joe Francis and Bury Him in the Desert

Here's something fun for a Friday!  This is the opening paragraph of Yahoo's report on the on-going legal feud between Las Vegas casino magnate Steve Wynn and Girls Gone Wild auteur Joe Francis:

"Music mogul Quincy Jones testified Thursday that he never told "Girls Gone Wild" creator Joe Francis that casino mogul Steve Wynn had threatened to kill the soft-porn producer and have him buried in the desert."

I think that may be the greatest sentence ever written... Kudos to Yahoo's Anthony McCartney!  For the record, I have no desire to become gossip blogger, but sometimes the goings-on in the entertainment industry are so ludicrous that I can't help but report on them.   According to this LA Times piece, Francis made the death threat accusation while fighting with Wynn over an alleged $2 million gambling debt owed to Wynn's casino.  Francis further accused Wynn of plying him with prostitutes to keep him gambling in the hopes of luring high rollers to the casino. A Nevada judge awarded Wynn $7.5 million in a defamation lawsuit over that claim.

Anyone who has paid attention to Hollywood over the past decade knows that the entertainment industry is on the precipice.  Movie ticket sales are down, the networks are hemorrhaging money because of technological advances in time and space shifting (i.e. DVRs, iTunes, iPad, etc.), and there are overreaching attempts by the major media companies to kill websites that display their copyrighted works.  But I guess sometimes we all need a distraction from the bad news facing the industry.  And who knows, maybe there's a killer movie in here somewhere.  I say Zach Braff could play Francis and Laurence Fishburne could play Quincy Jones!

Who would you cast?

Protecting The Brand: Aziz Ansari Case Study

Artists need to know how to protect their brand, and there are a lot of ways the law can help you do that: non-competes, licensing fees, lawsuits, etc.  But there are plenty of  non-legal ways to protect yourself, and I think comedian Aziz Ansari set a high bar for other artists.

Back in May, my wife and I went to see Aziz live at the Wilbur Theater in Boston.  As we expected, he killed it.  My cheeks hurt from laughing and I had a headache for days.  But Aziz did something unexpectedly impressive.  Before starting his act, he allowed the audience to spend 2-3 minutes taking pictures of him.  He even posed as if he were in the middle of telling a joke or interacting with audience members.  Although it wasn't really a part of the act, it was still quite funny and the crowd ate it up.  If I hadn't been in the cheap seats, I would have taken the opportunity to snap some pics myself.

[I've tried to find a clip of it online, but I've had no such luck.  If memory serves, he also did this at the beginning of his "Dangerously Delicious" concert; for $5.00, you can download the whole thing from his website.  I highly suggest checking it out!  He's hilarious.]

Logistically, it made sense to get the pictures out of the way up front: can you imagine how hard it is to do your act when little flashes are constantly going off in the near distance and your jokes are interrupted by the simulated "click" of a digital camera?  But the more I thought about it, the more I realized how brilliant this move actually was.  You see, Aziz knew that people were going to take pictures or video of him anyway, whether there was permission or not.  He understood that if he wanted to cut down on situations where his likeness would be misappropriated, or his act would be surreptitiously filmed without his permission (thus violating his copyright), he would have to control the opportunities in which the audience could make those infringements.

And it worked!  I was sitting in the balcony and I didn't see a single camera or iPhone light up once the photo-op ended.   But leveraging control over the situation was just part of the reason it worked; the other reason was because Aziz framed the situation as an implicit contract with the crowd. "I'll give you a great hour of comedy if you promise not to steal from me."  And because Aziz framed it like that, and then played into it seamlessly (and with humor), he got the audience to live up to their side of a contract they never realized had been made.  It was really amazing.  He did it his way and on his terms, and in so doing, he protected his brand without coming off like a money-hungry a-hole.