posted on September 8, 1999 03:33:20 PM new
Counselor, thank you for taking the time to be with us today and answer our questions.
The name answers lead logically to my next question: Assuming that the person or estate has the right of publicity, what happens when someone else with the exact same name attempts to use HIS OWN name for publicity purposes? Example: Jeff Jones' mom owns Jeff Jones the singer's, right of publicity. In Missouri there is a totally different person named Jeff Jones who attempts to capitalize on his name (perhaps by having people make art and poems about him). Assuming there is no attempt at misrepresentation (i.e. Missouri Jeff is not pretending to be Jeff the singer), what right does Jeff's mom have to control the activities of Missouri Jeff? (I know that in certain contexts, such as SAG registration, Missouri Jeff might have to register under another name.)
Does the right of publicity increase if the name is more unusual (Whoopi Goldberg instead of Jeff Jones) or if the person is more famous (Bob Dylan instead of Jeff Jones)?
Unrelated question: Are liner notes and similar publicity releases by a record label that presumably has contractual rights to an artist's work covered by the "right of publicity", or are they usually covered specifically by contract? In other words, if Behemoth Records has Jeff Jones the singer under contract or owns rights to some of his work, and Behemoth wishes to disseminate printed matter saying that "New Band XYZ sounds like Jeff Jones", does Behemoth have to have a contract provision in Jeff Jones' contract to have the right to do this?
And along the same lines, are record dealers permitted to quote that comparison from the liner notes for advertising purposes? Does the situation change if the dealer is a reseller of used record rather than seller of new record?
posted on September 8, 1999 03:35:08 PM new
Can the copyright/content holder control the production or sale of original artworks that simply reflect aspects of the artists life without quoting lyrics or infringing trademarks,etc.?
The copyright law, in general, forbids anyone to use any substantive part of a copyrighted work without the permission of the copyright owner. The law is very vague as to what constitutes a "substantive" part of a work. It may be simply a few words that suffice; and on the other hand it is possible to use many words from a novel without having taken what the law deems to be a "substantive" portion. Each case must be decided on it's own peculiar facts. In addition, the copyright law permits one great freedom in doing a parody of somebody else's work. So that it is possible to incorporate into a satire, for example, substantial portions of a copyrighted work if the satire satirizes that work. On the other hand, the courts are aware that people try to blatantly use copyrighted works in the guise of satires. What I am saying, once again, is that the line divideng permissable parody use from impermissable use is blurry, and each case must be viewed on all of it's own peculiar facts.
posted on September 8, 1999 03:36:03 PM new
Good Day to you both. I have the same legal birth name, as the person in question here. I have had this name, which was given to me at birth 61 years ago. This is much longer then this person had been alive, and deceased. Am i to understand that each time i sign my name, that i run the risk of infringing on a copyright? If I write a song, or paint a picture, am I by law, not able to sign my name to it?
How does this typ of situation play out sir?
Thank you for your unselfishness in allowing us this time today.
posted on September 8, 1999 03:36:07 PM new
Is the problem possibly surrounding registered trademarks of designer labels the owner of the trademark or ebay trying to suppress the sale of counterfeits/knockoffs. If I own an original, that I bought, 10 years ago, why can't I sell it?
Thanks.
posted on September 8, 1999 03:37:53 PM new
To clarify the resale question, how does the legal system resolve conflicts between swag and other promotional items marked "not for resale" and the UCC which guarantees the right to resell physical goods in one's possession?
I don't know what "swag" is. Neither the UCC nor any other law gives, much less guarantees, the right to sell goods in one's posession. If you lend me your fountain pen, I posess it, but I don't have the right to sell it. If you give me your pen as a gift, or you sell it to me, I have the right to sell it.
posted on September 8, 1999 03:41:13 PM new
Couldn't any manufacturer, then, just start stamping "not for resale" on all of their products, as a way to force consumers to buy directly from the manufacturer or authorized agents?
The law contains a long-honored principle called the "First Sale Doctrine". This doctrine, which addresses the exact question that you raise, says that no restrictions whatsoever can be imposed on the right to resell meerchandise by the first seller of that merchandise. Thus if a manufacturer sells goods, it cannot absent one of the few vary narrow exceptions there are to the First Sale Doctrine, impose any restriction on the right of the purchaser of those goods to resell them, or on the terms of any such resale.
posted on September 8, 1999 03:43:18 PM new
Thanks very much. My interpretation is that eBay or other online auctions are afraid of litigation. It doesn't matter that I own it outright and wish to resell.
posted on September 8, 1999 03:46:53 PM new
Good Day to you both. I have the same legal birth name, as the person in question here. I have had this name, which was given to me at birth 61 years ago. This is much longer then this person had been alive, and deceased. Am i to understand that each time i sign my name, that i run the risk of infringing on a copyright? If I write a song, or paint a picture, am I by law, not able to sign my name to it?
How does this typ of situation play out sir?
Thank you for your unselfishness in allowing us this time today.
Mr Jeff Buckley
St. Louis, MO
You certainly have the right to use your name, however and how often you wish. What you may not do is try to pass yourself off in some way as another person who has the same name. Now, if you decide you want to become a recording artist, you may have some problem using the name Jeff Buckley simply because there is the possibility of confusion between you and him, and whereas you had that name before he, his music and records will have preceded yours.
posted on September 8, 1999 03:49:06 PM new
In case you missed it
What about designer clothing? Coach, for instance, has been known to send cease and desist letters to sellers of their merchandise, although the seller owns it legitimately. How is this possible? Is it copyright infringement to display the logo on the clothing in an auction ad?
posted on September 8, 1999 03:53:55 PM new
Unrelated question: Are liner notes and similar publicity releases by a record label that presumably has contractual rights to an artist's work covered by the "right of publicity", or are they usually covered specifically by contract? In other words, if Behemoth Records has Jeff Jones the singer under contract or owns rights to some of his work, and Behemoth wishes to disseminate printed matter saying that "New Band XYZ sounds like Jeff Jones", does Behemoth have to have a contract provision in Jeff Jones' contract to have the right to do this?
And along the same lines, are record dealers permitted to quote that comparison from the liner notes for advertising purposes? Does the situation change if the dealer is a reseller of used record rather than seller of new record?
I am not sure that I understand parts of your question, but I will tell you this. Any record company worth it's salt acquires, as part of it's recording contracts,l the right to use the name and likeness of each of it's artists for various purposes, including promotion and publicity. Also, anyone has the right, as a rule, to compare one person's work with anothers, using the name of each. However, if you are going to use someone else's name, such as a recording artist's, as a comparison to someone else you should be careful not to use the artist's name so prominently that it suggests that you are attempting to sell the merchandise concerned by using the prominent artist's name. For example, if your liner notes claim that the artist on the record is comparable to a famous artist, with the name of the artist on the record printed in eight point type, and the name of the famous artist is printed in red, fourty point type, you may have a problem.
posted on September 8, 1999 03:55:50 PM new
Folks...trying to keep up! My fathers credentials:
Dartmouth undergrad, University of Penna law school, past VP of CBS records, chief counsel to RCA records, former deputy attorney general to the state of Pennsylvania and former VP of Radio City Music Hall, Inc. His specialty is entertainment law.
posted on September 8, 1999 03:57:01 PM new
I have 2 questions...
1: When selling trademarked items, should we be including a comment that says "XXX is a trademark of xxx.corp"
2: Does a website like ebay have an obligation to tell affected users (those whose auctions are canceled) about any appeals process included or stipulated in the DMCA?
I seem to recall there being a "put back" provision if the user appeals, unfortunately, I'm not sure about that.
posted on September 8, 1999 03:57:27 PM new
Thank you for an answer. I have a few more, if you will indulge me.
I therefore have the right to have aspiring young artists portray me in characature form, and have them name these pieces after me, providing that they do not say "Jeff Buckley - the singer". Is this correct?
Also, are my friends here permitted to place auctions in my name under the same guidlines?
posted on September 8, 1999 04:00:48 PM new
Generally, how far can an artist (or his estate) stretch the right of publicity? For example, can a recording artist (or his estate) flat out forbid use of a common name by an individual in any artistic media whatsoever? How about use of the name selling something that is in no way related to the original artist, when no allusions are made to the artist in ad copy?
posted on September 8, 1999 04:02:01 PM new
What about designer clothing? Coach, for instance, has been known to send cease and desist letters to sellers of their merchandise, although the seller owns it legitimately. How is this possible? Is it copyright infringement to display the logo on the clothing in an auction ad?
Copyright has nothing to do with whatever right Coach has in it's logo. There is a trademark in a logo, not a copyright. If you own goods made by coach, you may sell those goods, and you may tell the world that what you are selling is Coach merchandise. You must, however, be careful how you use the Coach name. When Coach goes after someone using the Coach name, it is usually because Coach believes that the merchandise has not been manufactured by Coach. Coach may also be annoyed, understandibly, by an ad that blasts it's name in big bold letters because perhaps the impression is created that Coach has something to do with the sale. But Coach does not have the right to prevent people from selling and reselling Coach merchandise, and simply identifying it as such, if it is Coach merchandise.
posted on September 8, 1999 04:10:00 PM new
Thanks for clairification on that.
Then we have a company, eBay, who pulls these auctions even though we own it. Simply because for example, Coach, may sue them. If I can prove I own it, and that I know it is not counterfeit, I'm okay, but ebay is not. Got it!
posted on September 8, 1999 04:11:28 PM new
Is the problem possibly surrounding registered trademarks of designer labels the owner of the trademark or ebay trying to suppress the sale of counterfeits/knockoffs. If I own an original, that I bought, 10 years ago, why can't I sell it?
As stated before, if you own the original you may legally sell it.
posted on September 8, 1999 04:16:17 PM new
I'm still a little confused about the right of publicity. For instance, a Billy Joel song mentions the Beatles, John Glenn, and other public figures. He's not quoting the Beatles song lyrics, just mentioning them. Does Billy Joel need permission to do this?
Or Stephen King talks about a music group. Obviously if he quotes their lyrics, he needs permission. But if he just talks about them, does he need to get permission to use their names?
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Lisa Land
posted on September 8, 1999 04:17:55 PM new
I meant if Stephen King writes about them in a book, or mentions their music in a book not just talking in conversation.
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Lisa Land
posted on September 8, 1999 04:23:30 PM new
What about people who write "unauthorized biographies" about famous people. I know the writer is liable for slander if they print lies, but otherwise can a writer capitalize on the fame of someone else?
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Lisa Land
posted on September 8, 1999 04:39:50 PM new
EVERYONE READ THIS!!!!A question for the corporate side. If ebay claims to be a venue and only a passive provider of a service, can a individual in California get a temporary restraining order to stop actions that seem to violate that claim. Two examples would be the Vero program and taking an active part in our auctions by revealing reserves or requiring us to set a minimum bid as a percentage of the reserve. It seems to me they can not be a venue if they take an active part in auctions or interfere on behalf of another without any recourse available to the person who's auction was interfered with on behalf of the Vero participant.
I am not going to try to answer your specific questions. i would like, however, to give all of you out there some basic advice regarding contracts. One of the nice things about the law contracts is that it gives two parties, themselves, the right to structure, without outside interference, all of the terms that are going to constitute theri contract. The law will not second guess the parties to a contract. That means that--except for certain situations that do not apply to the vast majority of commercial contracts--whatever the parties agree to in a contract, no matter how one-sided or stupid in hindsight they may be, the law will take that as the contract between them. Thus if an internet provider's users agree to the contractual terms spelled out by the provider, the law will lend a deaf ear to the user's complaints later that the contract is unfair, stifling, or otherwise disadvantageous to the user. If you freely enter into a contract, you are stuck with it, whatever it's terms may be. That is the general rule. Having sid this there is one principle of law, in particular, that users of internet services should be aware of, i. e., the Doctrine of Contracts of Adhesion. A contract of adhesion exists, simply put, where one of the parties to the contract has vastly superior bargaining power to the other. In such a case, a court will not enforce provisions of that contract against the party who had less bargaining power if the enforcement of those proviwsions would be deemed by the court to be unconscionable. This is an old doctrine of law, and it is not as widely applied nowadays as it was years ago; but the principle still exists. I think that it may very well be applicable, from the fact situations that I understand, to the contracts used by certain auction venues. If there is an auction venue, for example, that has few or no competitors, and it tells it's users that they must accept the user agreement "as is", without and change whatsoever, provisions of that agreement may be deemed unenforceable by a court if the court deems those provisions unconscionable. I will give you the clearset example of a contract of adhesion of which I can think. Suppose there is surgeon who is the only surgeon in the world that performs a certain kind of transplant, and that the medical community agrees that only such a transplant can save the life of the patient. Clearly, the bargaining position of the two parties, i.e., of the surgeon and the patient, are as lop-sided as can be. The surgeon does not need the patient, but the patient cannot live without the surgeon's services. In such a case, the surgeon has the power to dictate all of the terms of whatever contract may occur between the surgeon and the patient. The patient has noe leverage whatsoever. Such a contract would clearly be a contract of adhesion, and any of it's provisions that would be deemed unconscionable would be deemed unenforceable by the surgeon. User contracts on the internet aren't going to be quite as one-sided, in terms of bargaining leverage, as this. But, there are obviously cases where it would be very advantageous to be part of an internet service, and very disadvantageous not to, thus giving the service provider tremendous bargaining leverage over the user.
posted on September 8, 1999 04:42:25 PM new
What about people who write "unauthorized biographies" about famous people. I know the writer is liable for slander if they print lies, but otherwise can a writer capitalize on the fame of someone else?
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Noone needs anyone's permission to do a biography of a public personality.
posted on September 8, 1999 04:50:45 PM new
Well..hope this clarifies some questions. My fingers are tired and I must get up early so we are calling it a night!
posted on September 8, 1999 04:50:47 PM new
Counselor - Thank you for taking the time and sharing your wealth of knowledge and expertise on these issues. It's much appreciated.
