Sunday, October 24, 2010

Musicians, Know Your Rights: Appropriation and the Right Of Publicity

How does violating by Appropriation differ from violating Right of Publicity?
Appropriation is the unauthorized use of someone's name or likeness for financial gain. Appropriation emerged as one of the first privacy torts developed in 19th Century courts partially because they “resembled property rights” (315).

The courts' early decisions had difficulty quantifying mental harm to award monetary damages. A New York court in a 4-3 decision ruled in Roberson v. Rochester Folding Box. Co. case, that Abigail Roberson's argument that the use of her image to advertise a New York baking flour company violated her privacy and caused “unwanted publicity” that caused “embarrassment and humiliation” was not sufficient to award monetary damages for the use of her likeness without her permission (315). 

The decision reflected courts' hesitancy to recognize damages for intangible harms. The New York legislature responded to public sentiments that sided with Roberson's plea for privacy, passing a law “prohibiting the commercial use of a person's name or likeness without permission.”


Courts are not likely to award damages for public figures claims of “mental anguish” but they may a “property-like right when the name or likeness of a celebrity or other public person is used for financial gain without authorization”(316). 

The courts have struck down sales of items using celebrities images for commercial gain because it infringes upon the celebrity's right of publicity and their ability to use their image to sell products. 

The Georgia Supreme Court blocked the “sale of plastic models of Rev. Martin Luther King Jr.” maintaining that his publicity rights could be inherited by his children.


The U.S. Court of Appeals has twice held that Elvis Presley's right of publicity could be exploited exclusively by his heirs” and remains their their property to control (316). 


That means Lisa Marie Presley is the only legal Elvis Presley impersonator!


Maybe Elvis also signed his publicity rights to the Republicans when he visited President Nixon?

So how did this happen?
Next week in "Musicians, Know Your Rights":
I'll address the issue of what happens 
when we try to use the musical and lyrical ideas created by performers 
instead of their likeness.

In addition to preventing the creation of products that would infringe upon a person's right to profit from their likeness, celebrities have the right to prevent use of their likeness in commercial advertisements promoting products without their consent. Johnny Carson succeeded in suing a portable toilet business advertisement that used Ed Macmahon's introduction to The Tonight Show: "Here's Johnny!" 

What I find most difficult to understand in this point of law is when a likeness can be considered an infringement upon their identity rather than as taking someone's actual copyrighted material. Bette Midler was awarded “$400,000 after Ford Motor Co. ran ads in which a singer imitated Midler's distinctive style and voice,” concluding that “to impersonate her voice is to pirate her identity”(316). 

In what way can Midler's style and voice be distinguished from someone else in her genre? What kind of intent to imitate needs to be shown to prove that a likeness was intentionally exploited? Can advertisers argue that their commercial work has merits as a parody?

Tom Waits, whose raspy voice was imitated in an advertisement for Frito-Lays corn chips, won a judgment of $2.5 million for misappropriation.

The Ninth Circuit held he had a property right “to control the use of his identity as embodied in his voice”(316). Misappropriation cases try to define an advertisement's wrongful use of someone's likeness to create the illusion of that person's endorsement or involvement in the commercial. Courts struggle define when use of a public figure is characterized by malice or ill will that can be proven. What if a commercial publication uses an public figure's image for a purpose that is satirical in their editorial content?

The difference between appropriation and the right to publicity seems to balance the difference between private and public life. Appropriation protects the rights of private citizens to be left alone by commercial interests while the right to publicity protects public persons rights to their identity and commercial interests. The individual interests of either merit asking for consent and respecting our people's desire to protect their private and public interests.


All citations from Samuel A. Terilli, Jr. and Sigman Splichal, "Privacy Rights in an Open and Changing Society," Communication and the Law 2010 Edition.

Saturday, October 9, 2010

Sonni Shine & The Underwater Sounds and The Slackers perform at TLA

Sonni Shine & The Underwater Sounds opened for The Slackers at the Theater of Living Arts in Philadelphia, PA on October 09, 2010.

Sonni Shine & The Underwater Sounds are a Philadelphia-based reggae/soul/dub/rock group.



The group consists of 
Sonni "Shine" Schwartzbach- vocals, guitar
Sean "Tank" Youngman- drums
Kenny "Blade" Shumski- bass
Billy "Shadow" Campion- guitar
Erica "Car Bomb" Corbo- keys


The Slackers are a New York City band, formed in Brooklyn in 1991. The band describes their sound as "a mix of ska, rocksteady, reggae, dub, soul, garage rock, and jazz."



The group consists of
Vic Ruggiero - keyboards, vocals
Jay "Agent Jay" Nugent - guitar
Dave Hillyard - saxophone
Glen Pine - trombone, vocals
Marcus Geard - bass
Ara Babajian - drums

Friday, October 8, 2010

Weekend Forecast

Tonight: 

DJ Taaj, DJ Sylo, DJ Smoove, Tayyib Ali, Paris Artelli, and Asaad


Tomorrow:

Sonni Shine and the Underwater Sounds with The Slackers at the TLA


<a href="http://sonnishineandtheunderwatersounds.bandcamp.com/album/sonni-shine-the-underwater-sounds">Sonni Shine &amp; The Underwater Sounds by Sonni Shine &amp; The Underwater Sounds</a>

Sunday: 

The Roots opening for Barack Obama in Germantown

Sunday, October 3, 2010

Did Tupac's Lyrics Incite A Cop Killer?

Hold on a second... it's not what you think.

Davidson v. Time Warner, 25 Med.L.Rptr. 1705 (D.C.S.Texas 1997)

Facts of the Case
In April 1992, Ronald Howard fatally shot Officer Bill Davidson while driving a stolen automobile in Jackson County, Texas.


Davidson had stopped Howard, originally from the South Park area of Houston, Texas, on U.S. Highway 59 about 5 miles (8 km) south of Edna, Texas in a 1986 GMC Jimmy, as his vehicle had a broken headlight. When Davidson approached the driver-side window of the car, he was shot in the neck. Howard drove off but was apprehended later in the night, with a 9 mm pistol. The car was later found to be stolen. Three days later, Davidson died of his injuries. Drug tests showed that Howard had cocaine and cannabis in his system at the time of the murder.




He was listening to an audio cassette of... (cue suspenseful music)

...2Pacalypse Now.



Howard did not even pay 2Pac for his music... he was listening to an illegal bootleg tape!


Davidson's wife, Linda Davidson (and their children) sued Time Warner/Interscope Records/Atlantic Recording/Tupac Shakur, arguing that 2Pacalypse Now did not merit First Amendment protection. 

They alleged it was obscene, contained “fighting words,” defamed peace officers like Officer Davidson and tended to incite imminent illegal conduct on the part of individuals like Howard. 

She alleged that the music led to her husband's death.
Decision of the Court

Dismissed for lack of personal jurisdiction and the motion for summary judgment were granted. 

The District Judge John D. Rainey held that the record companies and Tupac did not hold property in the state and did not have enough minimum contacts in the state to be responsible for the direct distribution of the tape.

They did not have the duty to prevent the distribution of the music when they could not reasonably foresee that distributing the music would lead to violence nor was there an expectation to use the music as a “product for purposes of recovery under a products liability theory.”

Finally, Judge Rainey ruled that the Davidsons' argument that the music was unprotected speech under the First Amendement was irrelevant.

Reasoning of the Court

If we gave government the ability
to censor all ideas
that offend us,
would we be able to
think for ourselves?
All political and non-political music is considered First Amendment protected speech. First Amendment protection is not weakened because the music takes an unpopular or even dangerous viewpoint.

The court invokes the idea from Herceg v. Hustler Magazine, Inc., 814 F.2d 1017, 1019 (5th Cir. 1987) that freedom of speech is “not based on the naive belief that speech can do no harm” but “on the confidence that the benefits society reaps from the free flow and exchange of ideas outweigh the costs society endures by receiving reprehensible or dangerous ideas.”

Judge Rainey ruled that the burden to prevent harm is too high for the Defendants and society to police their recordings to the extent that would result in the sale of “only the most bland, least controversial music.”

The court also held that Davidson's argument that the music was obscene was irrelevant because they claimed that the violent lyrics incited Howard to kill Davidson, not sexually obscene lyrics.

Judge Rainey ruled that while 2Pacalypse Now may “spew invectives” at California police officers, it does not defame all police officers like the Davidsons' claims. In order for a remark to be defamatory it must be directed at a specific person and must be blatantly false.

Tupac recorded "God Bless The Dead" as a trailer for The Notorious B.I.G.'s classic Ready to Die, when Biggie was still alive. 
Could he be sued for libel? We'll get to that next week.

The court weighed his speech against the precedent set by Eimann v. Soldier of Fortune Magazine, 880 F.2d 830 (5th Cir. 1989), where plantiff Eimann sued Soldier of Fortune for negligence and gross negligence for publishing a personal services classified advertisement through which the victim's husband hired an assassin.

While 2Pacalypse Now may advocate illegal and violent activity, the “probability that a listener of 2Pacalypse Now would act on Shakur's message is substantially less than the chance that a person responding to a Soldier of Fortune advertisement would hire a 'hit man' for illegal activity.”

Eimann tied seven suspects to responding to the advertisement. Conversely, the Davidsons presented no evidence that 2Pacalypse Now had been the source of "music-inspired crime"; after more than 400,000 sales of 2Pacalypse Now, if the Davidsons are the only ones alleging violence after listening to Shakur's music, the probability of harm is very low.

Judge Rainey ruled that 2Pacalypse Now could not be considered “fighting words” because “no reasonable jury could conclude that persons would reflexively lash out because of the language of Shakur's recording."
"Fighting words" are not protected speech under the First Amendment. 
Only when words are combined with actions do they become punishable.

While the Davidsons may have shown that Shakur intended to produce imminent lawless conduct, the Davidsons cannot show that Howard's violent conduct was an imminent and likely result of listening to Shakur's songs. While Shakur may describe his music as “revolutionary,” it does not mean that Shakur intended his music to produce imminent lawless conduct. Rainey cites Brandenburg v. Ohio (395 U.S. 444, 447-48, 89 S. Ct. 1827, 1829-30, 23 L. Ed. 2d 430), stating that the constitution protects the advocacy of the use of force or law violation unless it is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. 

Rainey's use of the precedent makes clear that the “the mere abstract teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.”