by Zachary Wadlé

Earlier this year, I wrote of an impending legal battle between Shepard Fairey, the artist of the iconic Barack Obama “Hope” painting and the Associated Press who owns the photograph upon which the painting was based. I questioned whether any artist could commandeer the President’s likeness, and whether President Obama could stop the use of his likeness if he was so inclined. As discussed in my previous article, the answer likely depends on how “transformative” of President Obama’s likeness the work of art is.

 

Continue Reading “Transformative” Or Not Revisited

by James Kachmar

In Cristoff v. Nestle USA, Inc., the California Supreme Court issued guidance in determining when the statute of limitations runs on a claim for appropriation of likeness. Russell Cristoff, the plaintiff, was a professional model who posed in 1986 for a photo with him gazing at a cup of coffee. Cristoff was paid $250 for the photo shoot which was arranged by Nestle (Canada). 

In 1997, Nestle decided to redesign its label for Taster’s Choice instant coffee but had difficulty locating the artwork that had been used for the original “taster” on its existing label. Nestle decided to use Cristoff’s image because he looked distinguished and similar to the original “taster”. Nestle believed that it could use the image because it had been widely used in Canada. Nestle did not, however, investigate the scope of Cristoff’s consent nor did it ask Cristoff if he would consent to Nestle’s use of his image.

 

Continue Reading Taster’s Choice – Appropriation of Likeness and the Statute of Limitations

By Scott Hervey

Those in the wine industry regularly traverse a vast array of statutes, rules and regulations in an effort to get their grape from the vine into your glass. One set of regulations all wine producers deal with are those governing wine labeling. The federal government, which regulates wine labels through the Alcohol and Tobacco Tax and Trade Bureau (the TTB), imposes rules which state what must and what may not be included on a wine label. A winery or wine producer must obtain federal approval of each wine label before bottling wine in the United States. In addition to federal approval, some states have their own wine label approval process wine producers and or distributors must go through prior to a wine being sold within that state. Most of the time the federal and state wine label approval process is straight forward. However, every so often a situation arises which shows the process can be complex and subjective.

 

Continue Reading Wine’s “Full Bodied” Label Not To State Regulator’s Liking

By Jeff Pietsch

On June 30, 2009, the Second District Court of Appeals in Los Angeles affirmed the judgment of a lower court and held that internet servers like MySpace cannot be held liable when minors are sexually assaulted by adults they meet through the website.   The plaintiffs representing the four minor “Julie Does” and their parents or guardians brought suit against MySpace for negligence, gross negligence, and strict product liability claims.  They contend that MySpace should have instituted “reasonable, basic safety precautions” such as using age-verification software or setting the default security on minor’s accounts to “private” to protect minors from sexual predators.  The court, however, found that Section 230 of the Communications Decency Act protects MySpace from liability, and ruled that what the plaintiffs want—to restrict or make available certain material—is expressly covered by Section 230 and provides immunity to MySpace.

Continue Reading MySpace Not Liable For Sexual Assault of its Users

by W. Scott Cameron

Section 505 of the Copyright Act provides that the court may, in its discretion, award full costs, including reasonable attorneys’ fees, to the prevailing party in a claim arising under the Copyright Act.  17 U.S.C. § 505.  In 1941, the Ninth Circuit ruled that when a party voluntarily dismisses her claim without prejudice after the court ordered a more definite statement, the defendant is the prevailing party, and therefore entitled to attorneys’ fees.  Corcoran v. Columbia Broadcasting System, Inc., 121 F.2d 575, 576 (9th Cir. 1941).  The Corcoran court expressly rejected the plaintiff’s contention that the dismissal without prejudice does not confer prevailing party status on the defendants. 

Continue Reading Ninth Circuit Changes Its Definition of “Prevailing Party” In Copyright Cases