A DISCUSSION OF LAW AND JOURNALISM

Tag: Right of Publicity

The Definition of Chutzpah?

Brian Holloway Trashed House

By Zachary Edelman

The prospect of having a second, third or fourth home is alien to many of us on tight budgets. But get this, there are gorgeous mansions sitting on acres upon acres of land all across the country that sit furnished, vacant and vulnerable for months of the year.

Some teenagers must have wondered what it would be like see life as Jay Gatsby, even if just for a few hours, because on August 31 former NFL Lineman Brian Holloway, who was at his home in Lutz, Florida, was alerted to a party going on at his rural vacation home in the foothills of the Berkshire Mountains. And what a party it was. Walls inside the house were spray-painted, the floor was peed on, furniture was broken and personal possessions were stolen, causing up to $40,000 in damages.

For a country outraged over revelations that the NSA tracks our every move, we sure don’t make it difficult for the government (or anyone else) to see exactly what we are up to; we broadcast to the world our every moment via one social media site or another. The teens who ransacked Mr. Holloway’s home were no different, taking and posting and tweeting and Instagram-ing dozens of photos of themselves cavorting and drinking and drugging inside Mr. Holloway’s (extra) house.

Mr. Holloway was angry, as any homeowner in his situation would be, and created a website aggregating all the evidence of revelry that evening adding the partiers names to the tweets and pictures. Mr. Holloway, who has worked with the substance abuse prevention program D.A.R.E., lists one main objective on his website– to turn the incident into a force for good by allowing the still impressionable youths to redeem themselves and reject the path of drinking, drugs, crime and violence.

Mr. Holloway must have suffered a concussion or two during his NFL career, because he is delusional if he thinks teenagers who break into a vacant house to party are going to change their ways as the result of a website. His invitation to the hellions to help him clean his house fell on mostly deaf ears; only five teens — of nearly 300 –showed up to help him clean the mess.

If you’re thinking the kids didn’t show up because they were grounded, think again. In fact, their parents are mad – even livid. But not at them. At Mr. Holloway. The indignant parents have threatened to hurt Mr. Holloway; at the very least, they are threatening to sue. (Some people might call this the very definition of “chutzpah”). Reposting the photos and identifying the culprits, they say, could “ruin their kids’ college plans.”

Lots of reports out there, but no analysis of the merits of the potential lawsuits against Mr. Holloway.  LASIS investigates.

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Skating Over Legal Terminology

Oksana Baiul

By Asher Hawkins

Dressing up in spandex and sequins. Strapping on a pair of ice skates. Performing a carefully choreographed routine to the smooth-jazz stylings of Kenny G. Sound embarrassing?

For a professional figure skater, that’s just another day at the office. In fact, the pro-skater would probably object if it were suggested that she had agreed to engage in such a performance, but then pulled a no-show at the last minute. A couple of stunts like that, and suddenly you’re the LiLo of the skating-show world.

Earlier this month, Ukraine-born former Olympian Oksana Baiul sued NBC and a skating-show production company whose events apparently are regularly broadcast by the network, in state court in Manhattan, alleging that her name and likeness were used in promotional campaigns for a pair of recent skate shows, even though she had never officially signed on as a performer for the events.

Reports about Ms. Baiul’s suit by the Associated Press, New York Daily News, The Hollywood Reporter, Variety and others described the gist of her allegations, and readers would be forgiven for thinking, after reading these accounts, that Ms. Baiul’s claims primarily involve contract or defamation law.

As it happens, the key doctrine on which her complaint actually relies is a legal concept commonly (and sometimes inaccurately) referred to as “right of publicity.”

Some background:

Do you even remember Ms. Baiul? At the age of 16, she overcame injury during the 1994 Winter Olympics in Lillehammer to beat out American sweetheart Nancy Kerrigan for the gold. Her unfortunate hairstyle and outfit choices may have made Tonya Harding look like a fashion icon by comparison, but oh, how she could lutz!

Ms. Baiul’s post-Olympic career has had its ups and downs; in the late 1990s, national media regularly reported on her apparent struggles with alcohol abuse. Still, she continues to perform in skating shows.

According to her lawsuit, in mid-2011 skating-show production company Disson Skating contacted an agent with whom she was affiliated and offered to pay Ms. Baiul to star in two upcoming shows. The first show was to take place in December 2011 in Greenville, S.C., and feature the progressive-rock band Styx (of “Mr. Roboto” fame.) The show with Kenny G was to take place in January 2012 in the saxophonist’s hometown of Seattle. Ms. Baiul claims that although she never signed a contract with the production company – and ultimately turned down the offer – the shows’ organizers launched a print-and-radio marketing campaign that included Ms. Baiul’s name and likeness and suggested that she would be appearing in the shows. Because that didn’t happen, and because the defendants never issued a correcting press release, Ms. Baiul was left looking like a two-time no-show, and suffered irreparable damage to her reputation, her lawsuit contends.

If a tree falls in the forest and nobody is around to hear it, does it make a sound? If something disparaging is said about a Z-list celebrity, has any harm been done?

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RAINN-ing on Charlie Sheen

sheen

By Matthew Catania

Thanks to his kooky quotations and unapologetically brazen behavior, Charlie Sheen is winning the culture war despite being fired from Two and a Half Men. After breaking the Guinness World Record for fastest person to reach 1 million followers on Twitter, he’s taking his rambling diatribes on a multi-city tour called “Charlie Sheen LIVE: My Violent Torpedo of Truth/Defeat is Not An Option Show.” (Let’s hope the rest of the tour goes better than the kickoff performance in Detroit). But not everyone is a fan. Many of his detractors believe that his cult of personality encourages the abuse of drugs and women, and one group, UnFollowCharlie, has asked the public to boycott Mr. Sheen’s Twitter and tour as a stand against misogyny.  The group started selling products bearing the Unfollow Charlie logo through Zazzle, a website that creates custom products from user-submitted designs, and a storm of publicity followed the announcement that the money raised by the sales of these products were to go to RAINN, the Rape Abuse & Incest National Network.

UnFollowCharlie’s fundraising efforts came to an abrupt halt on March 17 when Zazzle had its merchandise removed for violating the site’s user agreement. At first the group thought that the goods were pulled because the bird on its logo was too similar to the one in Twitter’s logo. It turned out that FEA Merchandising, producers of official Charlie Sheen t-shirts, sent the takedown notice because it believes the Unfollow Charlie shirts infringe on Mr. Sheen’s right of publicity. Zazzle’s notice to UnFollowCharlie stated:

Unfortunately, your product was removed because it featured a design that does not meet Zazzle Acceptable Content Guidelines. Specifically, your product contained content that violates Charlie Sheen’s rights of celebrity/publicity. Charlie Sheen’s name and likeness are protected by rights of celebrity/publicity and may not be used on Zazzle products without permission.

That Mr. Sheen felt a keen proprietary interest in his product is no surprise; one week  before the takesown notice was sent he declared “I need to gobble up all these f*ckin’ posers and bootleggers and make them go away. Then we’re gonna deliver the real f*ckin’ t-shirts and mugs and hats.”

When THR Esq. ran this story, Eriq Gardner concluded with a few open-ended questions as to who should prevail in this dispute. LASIS analyzed the situation and came to some conclusions. (more…)

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Advertisement or Commercial Exploitation of a U.S. President?

By Ted Wills

The White House has been busy in 2010 requesting the removal of President Obama’s image from advertisements. The NY Times and other news outlets have reported the story in detail, but many have painted the legal justification for these requests as falling in a constitutional gray area, and have suggested that the First Amendment might protect the purveyors of advertisements in question.

While journalists may have given this view credence to provide balance or a hint of drama to their articles, a more specific legal analysis suggests that President Obama would likely be successful in any litigation against the companies that sponsored the ads.

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