Cindy Lee Garcia thought she was playing a bit part in “Desert Warrior,” an adventure film being made by an amateur film maker. The film was never completed. Instead, Ms. Garcia’s performance was re-purposed, and her physical on screen appearance was used in a film titled “Innocence of Muslims,” with her voice redubbed, changing her speaking part so that she appeared to being asking, “Is your Mohammed a child molester?” The film was uploaded to YouTube. An outraged Muslim cleric saw the video and thereafter issued a fatwa directing his followers to kill everyone involved with the film. Ms. Garcia was nonplussed.

Garcia filed suit seeking, among other things, a restraining order directing Google to remove the film from YouTube. Primarily, Garcia claimed that the video infringed a copyright which gave her the exclusive right to control the use of her performance. Granting the injunction, the district court ruled that Garcia was likely to succeed on her copyright claim because it believed she held a valid copyright interest in her performance, and that the film maker had exceeded the terms of a license granted by plaintiff when she was misled into acting in “Innocent Muslim,” under the false pretense that she was playing in “Desert Warrior.” The court also determined that Garcia faced irreparable harm because Garcia had been receiving death threats. Google appealed to the Ninth Circuit. Initially the Ninth Circuit agreed with Garcia, however on May 18th, sitting en banc, the Ninth Circuit reversed.


Continue Reading “Desert Warrior” Vanquished: Google Defeats Cindy Lee Garcia’s Copyright Claims

In 2008, former Mayor of Washington, D.C., and then council member Marion Barry became ill with a kidney disease. To survive the illness, Mr. Barry required a kidney transplant, and one of his friends, Ms. Kim Dickens, came to his aid and donated one of her kidneys. Although the transplant helped Mr. Barry survive for several more years, he passed away in November 2014. Ironically, Mr. Barry’s widow is now suing Ms. Dickens.

In a lawsuit filed by Cora Masters Barry against Kim Dickens, Mrs. Barry alleges that Ms. Dickens has unlawfully used her late husband’s celebrity identity in order to promote the “Barry Dickens Kidney Foundation,” a charity formed by Ms. Dickens. According to the website of the Barry Dickens Kidney Foundation, Marion Barry played a role in the formation of that group, and the website even features photographs of Mr. Barry along with a detailed story of how Ms. Dickens came to donate one of her kidneys to Mr. Barry.

Mrs. Barry’s claims against the Foundation are not without legal precedent. In 1993, Wheel of Fortune hostess Vanna White sued Samsung Electronics of America in connection with a television ad which depicted a robotic version of Ms. White to promote sales of Samsung’s video cassette recorder. Ruling in favor of Ms. White, the Court of Appeal determined that television and other media create “marketable celebrity identity value,” and a celebrity has an exclusive right to exploit this value by prohibiting unauthorized commercial exploitation of their identity.


Continue Reading Move Over Vanna White, Here Comes Marion Barry’s Kidney

On February 5, 2015, Congressman Bob Goodlatte reintroduced the “Innovation Act”; a bill designed to implement several changes to the legal framework governing United States patent law. The law is designed to make it more difficult for non-practicing entities (also known as “patent trolls”) to maintain patent infringement lawsuits. The law appears to have significant support among both houses of Congress, and may soon become law.

If passed, the Innovation Act purportedly will create several disincentives aimed at increasing the risk faced by non-practicing entities when bringing patent infringement lawsuits. First, the Innovation Act would require non-practicing entities to meet a heightened pleading requirement. Non-practicing entities would be required to plead “with detailed specificity” how the accused products allegedly infringed their patents. Additionally, the Innovation Act contains a fee-shifting provision which would allow the court to award attorneys’ fees to the prevailing party. This provision was included in the Act to address the fact that most lawsuits brought by non-practicing entities are settled by the accused party because the defense costs and legal fees associated with defending patent infringement cases often run into the millions of dollars.
Continue Reading Congress is Reconsidering “Anti Troll” Legislation

If you use Facebook, you probably already have noticed that many users are posting statements claiming that Facebook somehow acquires ownership of users’ intellectual property that has been posted to that site.  Reacting to this entirely erroneous proposition, many Facebook users have posted very scary and onerous status updates aggressively asserting their intellectual property rights in the materials they have uploaded onto Facebook.  One user posted that they “hereby declare that my copyright is attached to all of my personal details, illustrations, comics, paintings, crafts, professional photos and videos, etc. . . . for commercial use of the above my written consent is needed at all times!”  (Undoubtedly her use of an exclamation point will add significant legal weight when this status update is considered by a court in the forthcoming case of Everyone v. Facebook.)  That same user warns us that violation of her privacy is punished by law, UCC 1 1-308-308 1-103 and the Rome Statute.  Undoubtedly, Facebook is horrified by the prospect of violating either of these statutes.  Or not.

This Facebook user (and legions of other Facebook users who (ironically) have copied her ominous copyright warning) apparently have missed the plainly worded terms governing the use of Facebook’s online services.  While it’s not clear how the Uniform Commercial Code or the Rome Statute possibly could govern the relationship between a Facebook user and the website, the Facebook terms of use agreement clearly states that “you own all of the content and information you post on Facebook . . . .”  The agreement further provides that users merely give Facebook a limited, non-exclusive license to any intellectual property content posted on the website, a license which expires when the content is deleted by the user.  Perhaps these simple contract terms were missed during the analysis of international criminal statutes (which have not been ratified in the United States), or laws related to the sale of goods.
Continue Reading Your Facebook Copyright Notice is More Annoying than Farmville

On May 31, 2014, members of the band Led Zeppelin and its publishers were sued for copyright infringement by Randy California, the former guitarist and front man of the band Spirit.  The lawsuit, filed in the state of Pennsylvania, alleges that a significant portion of Led Zeppelin’s “Stairway to Heaven” was stolen from “Taurus,” a