Advertising violations
Corinne Nyquist
I am a college librarian who has just been asked if an ad in the campus
newspaper is a violation of copyright. The ad uses the pictures of the
three stooges and then says to vote the local stooges i.e. politicians
out of office. The politicians are fair game, but the ad was paid for
by a local bar owner who has many violations and so does not like the
local government enforcement of occupancy and under age drinking. Does
someone own the rights to the three stooges images and how can this be
found out?
Corinne Nyquist, SUNY New Paltz, nyqu...@matrix.newpaltz.edu
Amy Lennie
On Tue, 09 Mar 1999, Corinne Nyquist <nyqu...@matrix.newpaltz.edu> wrote:
>
> I am a college librarian who has just been asked if an ad in the campus
> newspaper is a violation of copyright. The ad uses the pictures of the
> three stooges and then says to vote the local stooges i.e. politicians
> out of office. The politicians are fair game, but the ad was paid for
> by a local bar owner who has many violations and so does not like the
> local government enforcement of occupancy and under age drinking. Does
> someone own the rights to the three stooges images and how can this be
> found out?
You definitely have to clear the three stooges likeness, especially
because their likenesses are being used to sell something (ie: the
politicians). Their estates (if they are all dead) will own the rights.
Contact the Screen Actor's Guild estates dept. for that info. If they
are alive contact SAG at 213-549-6737 or AFTRA at 323-634-8100 and they
will give you their contact info.
Hope this helps.
--
Regards,
Amy Lennie
<ale...@interlog.com>
Cumbow, Robert-SEA
On Tue, Mar 09, 1999, Corinne Nyquist <nyqu...@matrix.newpaltz.edu> wrote:
>
> I am a college librarian who has just been asked if an ad in the campus
> newspaper is a violation of copyright. The ad uses the pictures of the
> three stooges and then says to vote the local stooges i.e. politicians
> out of office. The politicians are fair game, but the ad was paid for
> by a local bar owner who has many violations and so does not like the
> local government enforcement of occupancy and under age drinking. Does
> someone own the rights to the three stooges images and how can this be
> found out?
The copyright in the photograph is owned either by the original
photographer or by whomever he assigned it to.
It may be owned by a movie studio, if it's a frame blowup from a movie.
The publicity rights of the Three Stooges (a different legal right from
copyright) are owned, controlled, and aggressively enforced by Comedy
III Productions, Inc., which has won several lawsuits over the
unlicensed use of the Stooges' images on merchandise.
If the ad infringes either copyright or rights of publicity, the paper
and the school could be liable along with the advertiser. I would
strongly recommend getting good legal advice.
Bob Cumbow
cu...@perkinscoie.com
206-583-8566
Ikonen, Greg
On Tue, Mar 09, 1999, Corinne Nyquist <nyqu...@matrix.newpaltz.edu> wrote:
>
> I am a college librarian who has just been asked if an ad in the campus
> newspaper is a violation of copyright. The ad uses the pictures of the
> three stooges and then says to vote the local stooges i.e. politicians
> out of office. The politicians are fair game, but the ad was paid for
> by a local bar owner who has many violations and so does not like the
> local government enforcement of occupancy and under age drinking. Does
> someone own the rights to the three stooges images and how can this be
> found out?
Corinne:
An outfit known as Comedy III Productions, Inc., out of Glendale,
California owns The Three Stooges right of publicity (in California the
right of publicity, under certain circumstances, survives death). They
have brought numerous suits to enjoin others' use of The Three Stooges
name and likeness. The situation you pose is complicated by the fact
that the advertisement was likely published outside California (New
Paltz is in New York, if I recall). New York, unlike California, takes
a miserly view of the right of publicity.
I suspect that Comedy III also owns certain copyrights in The Three
Stooges images, but this issue is also complicated, since the pictures
you described were likely taken from movie stills or movie posters, in
which case the film studio likely retains those rights. Alternatively,
Comedy III might claim that it owns the characters created by The Three
Stooges, which would give it rights above and beyond individual images.
I'll leave it to those who know about the scope of rights in characters
to amplify that point (or correct me if I'm wrong).
Greg Ikonen
<gik...@venlaw.com>
Vance R. Koven
On 3/11/99, Robert Cumbow <cu...@perkinscoie.com> wrote:
>
> The publicity rights of the Three Stooges (a different legal right
> from copyright) are owned, controlled, and aggressively enforced by
> Comedy III Productions, Inc., which has won several lawsuits over the
> unlicensed use of the Stooges' images on merchandise.
I'm curious about the term of publicity rights. I had thought rights of
privacy and publicity were personal rights, and as such would normally
expire with the person to whom they attach. Obviously, this is incorrect;
what's the black-letter rule on this? Are they perpetual?
******************************************************************
* Vance R. Koven * phone: 617-482-3852 *
* attorney at law * fax: 617-482-4972 *
* 20 Park Plaza Ste. 633 * net: vrk...@world.std.com *
* Boston, MA 02116 * *
******************************************************************
Peter Yu
Ikonen, Greg
On Sat, Mar 13, 1999, Carol Cricow <ca...@yujean.com> wrote:
>
> On Fri, 12 Mar 1999, Vance Koven <vrk...@world.std.com> wrote:
> >
> > I'm curious about the term of publicity rights. I had thought rights
> > of privacy and publicity were personal rights, and as such would
> > normally expire with the person to whom they attach. Obviously, this
> > is incorrect; what's the black-letter rule on this? Are they
> > perpetual?
>
>
> publicity - all after Elvis's death. Death is not hinderance to
> this tort. I don't know how perpetual they are but the Elvis people
> (as well as the 3 Stooges people, the Marilyn Monroe people etc. etc.)
> are still going strong.
Actually, the post-mortem right of publicity is still the minority rule
in the United States; the law in most states is that publicity rights
expire with the death of the individual. I haven't checked recently,
but a few years ago there were about 10-12 states that recognized the
right after death -- most by statute, but one or two by common law. The
scope of protection varies wildly from state to state, with California
being a leading jurisdiction, given the considerable traffic in
necro-celebrities generated by Hollywood and the movies.
Greg Ikonen
<gik...@venlaw.com>
Cumbow, Robert-SEA
On Sat, Mar 13, 1999, Carol Cricow <ca...@yujean.com> wrote:
>
> On Fri, 12 Mar 1999, Vance Koven <vrk...@world.std.com> wrote:
> >
> > I'm curious about the term of publicity rights. I had thought rights
> > of privacy and publicity were personal rights, and as such would
> > normally expire with the person to whom they attach. Obviously, this
> > is incorrect; what's the black-letter rule on this? Are they
> > perpetual?
>
> The Elvis Presley Estate practically invented the tort of right of
> publicity - all after Elvis's death. Death is not hinderance to
> this tort. I don't know how perpetual they are but the Elvis people
> (as well as the 3 Stooges people, the Marilyn Monroe people etc. etc.)
> are still going strong.
This is true in only some states. There are numerous jurisdictions in
which the right of publicity is not descendable, and others in which it
is descendable only if it was exploited by the decedent during his own
lifetime. Obviously, however, Tennessee and California are not among
those jurisdictions, but are rather the two states in which rights of
publicity are most broadly protected. The rights of the Three Stooges
are protected under California statutory law, and are controlled by
Comedy III Productions, Inc.
Bob Cumbow
cu...@perkinscoie.com
206-583-8566
Cumbow, Robert-SEA
On Tue, Mar 16, 1999, Vance R. Koven <vrk...@world.std.com> wrote:
>
> On Mon, 15 Mar 1999, Robert Cumbow <cu...@perkinscoie.com> wrote:
> >
> > This is true in only some states. There are numerous jurisdictions in
> > which the right of publicity is not descendable, and others in which it
> > is descendable only if it was exploited by the decedent during his own
> > lifetime. Obviously, however, Tennessee and California are not among
> > those jurisdictions, but are rather the two states in which rights of
> > publicity are most broadly protected. The rights of the Three Stooges
> > are protected under California statutory law, and are controlled by
> > Comedy III Productions, Inc.
>
> rights against California violators?
I don't think that's true ... I'm pretty sure they have prevailed
against out of state defendants as well.
If so, however, it probably had to do with the addition of common law
right of publicityor unfair competition claims, and the reach of
California's long arm statute. I'm only speculating here.
Bob Cumbow
cu...@perkinscoie.com
206-583-8566
Vance R. Koven
On 3/17/99, Robert Cumbow <cu...@perkinscoie.com> wrote:
>
> I don't think that's true ... I'm pretty sure they have prevailed
> against out of state defendants as well.
>
> If so, however, it probably had to do with the addition of common law
> right of publicityor unfair competition claims, and the reach of
> California's long arm statute. I'm only speculating here.
Perhaps I was not writing clearly, but your response raises an
interesting question on its own. What I was thinking was that C3PI
couldn't go to NY and sue someone who was "violating" the California
statute *in New York* -- California presumably not having legislative
jurisdiction over acts that take place in New York not intended to have
effects in California. Where someone acts on a national basis, and
certain effects of that enter California, the issue is more complicated.
There may be some interesting constitutional issues here about "dormant
commerce clause" effects, but let that go.
Your response raises the choice-of-law issue. We're not used to thinking
about that in copyright!
Tyler Ochoa
On 03/09/99, Corinne Nyquist <nyqu...@matrix.newpaltz.edu> wrote:
>
> I am a college librarian who has just been asked if an ad in the
> campus newspaper is a violation of copyright. The ad uses the
> pictures of the three stooges and then says to vote the local stooges
> i.e. politicians out of office. The politicians are fair game, but
> the ad was paid for by a local bar owner who has many violations and
> so does not like the local government enforcement of occupancy and
> under age drinking. Does someone own the rights to the three stooges
> images and how can this be found out?
Despite the extraterritoriality problem, I am fully in agreement with
those who counseled caution and provided contact information, especially
in light of the Three Stooges litigiousness, and the expansive scope
given to the right of publicity by many courts.
I am compelled add that I think this is the type of use that OUGHT to be
fair use under the First Amendment. This is clearly political speech,
and it seems to me this is much more like a "nominative" use of a
trademark than it is like a commercial merchandising venture. But given
the courts' treatment of "satire" (use of a copyrighted work to target
something other than the work itself), I have serious doubts that my
view will prevail.
Tyler T. Ochoa
Associate Professor
Whittier Law School
<toc...@law.whittier.edu>
Tyler Ochoa
On 03/18/99, Vance R. Koven <vrk...@world.std.com> wrote:
>
> Perhaps I was not writing clearly, but your response raises an
> interesting question on its own. What I was thinking was that C3PI
> couldn't go to NY and sue someone who was "violating" the California
> statute *in New York* -- California presumably not having legislative
> jurisdiction over acts that take place in New York not intended to have
> effects in California. Where someone acts on a national basis, and
> certain effects of that enter California, the issue is more complicated.
> There may be some interesting constitutional issues here about "dormant
> commerce clause" effects, but let that go.
>
> Your response raises the choice-of-law issue. We're not used to
> thinking about that in copyright!
For anyone interested in a thorough discussion of the potential
constitutional problems raised by extraterritorial application of
state I.P. laws, I recommend an article by my colleague, Prof. David
Welkowitz, titled "Preemption, Extraterritoriality, and the Problem
of State Antidilution Laws," 67 Tulane L. Rev. 1 (1992).
The article discusses in particular the nationwide injunction based on
state law that was issued in Mead Data Central v. Toyota Motor Sales
(the LEXIS/LEXUS case). Prof. Welkowitz' thesis is that there are
constitutional limits on the ability of a state to issue nationwide
injunctions; that these limits are implicit in several areas of Supreme
Court jurisprudence: preemption cases (including Goldstein), personal
jurisdiction, dormant commerce clause, and regulatory authority (power
to tax) cases; but that the Supreme Court has so far failed to unify
the concerns expressed in these cases into a single conherent doctrine.
It is a fascinating and difficult problem that deserves more attention.
Ultimately, however, it is a problem that cuts across many substantive
areas, so a detailed discussion is probably well beyond the scope of
this list.