The
entertainment industry is busy with a whole host of lawsuits stemming from plaintiffs
seeking compensating for infringement of the following: Rights of Publicity,
Copyright, Trademark, and Patent. In order to succeed in the courtroom, the
plaintiffs have to meet the criteria for infringement:
-
The
purpose and character of the use, including whether such use is of a commercial
nature or is for nonprofit educational purposes;
-
The
nature of the copyrighted work;
- The
amount and the substantiality of the portion used in relation to the copy-
righted work as a whole; and
The effect of the use upon the potential market for or value of the copyrighted work. (17 USC 107)
- Rights of Publicity
The
Plaintiffs’ claim, violation of “Rights of Publicity”; defendants’ defense the
“First Amendment”, Anti-SLAPP law of California.
Plaintiffs
in the following case are of athletes whose images were used in basketball and
football electronic games. The National Collegiate Athletic
Association
(NCAA) was heavily compensated and not the athletes. The NCAA asserts that due to the “Amateurism”
of college athletes, they are not to be paid and that the necessity of this
rule is to uphold its educational mission and to protect the popularity of
collegiate sports (Munson, 2014).
In
the O’Bannon case and later the Keller case, are of athletes, Samuel Keller and
Ed O’Bannon filed against the NCAA, EA Sports and the Collegiate Licensing Company
(CLC) will change college athletics. The
decision made by U.S. District Judge Claudia Wilken
ruled in favor of the plaintiff, O’Bannon, to award former and current athletes
$5,000 per season that can total up to $25,000 for an athlete’s college career.
I agree with her ruling, only because the award seems reasonable
and isn’t that substantial. The research
revealed that the NCAA was investing portion of the money obtained from sales to invest in
college athletics. Sports Digest listed
examples of areas of funding and expenses.
One example, Football has $16.1 million in expenses and $27 million in
revenue. Men’s basketball had $7.4 million in expenses and $6.6 in revenue. To NCAA’s point if they have to pay athletes,
where will the shortage of funds come from?
Copyright
Copyright
is a system for protecting the “original works of authorship fixed in any tangible
medium” (Copyright Act, 17 USC 102)
In
the case Patrella v. Metro-Goldwyn-Mayer
(MGM), Inc., Patrella, the petitioner and the heir of a screenplay writer,
sought compensation of the material being reproduced and distributed in violation
of the Copyright Act. The
defense claimed the equitable defense of laches, which was granted and later
overturned by the Supreme Court. As the
remedy, Patrella was awarded damages that occurred within the three-year
limitations period (§ 507(b) of the Copyright Act).
I
concur with the Copyright Act law that allows the three-year limitations
period. This law appears reasonable and grants the petitioner some
compensation; after all, the defendants did not try to seek permission from the
heir.
Trademark
“Any
word, name, symbol, or design or any combination thereof, ad- opted and used by
a manufacturer or merchant to identify his goods, and distinguish them from
those manufactured or sold by others” (lanham Act, 15 USC 1052)
Hells
Angels Motorcycle Corp. has been fighting trademark violations suits in the
past 10 years, over the use of the winged death head and patch design
trademarks. More recently, the Hells
Angels settled a dispute with the rapper/performer Young Jeezy, his clothing
line “Young Jeezy 8732 Apparel LLC” and the clothing store Dillard’s based in
Little Rock, Arkansas that sold the merchandise.
I totally agree with the settlement but what is confusing is to why the retail store Dillard's did not catch this. I would assume that a large chain would have checks and balances in place to sift out trademark infringement pertaining to merchandise.
References:
O’Bannon
V. National Collegiate Athletic Association, Electronic Arts INC., and
Collegiate Licensing Company, U.S. Dist. Lexis 110036, (2014).
Keller
v, Electronic Arts, NCAA, Collegiate Licensing Company, aff’d, 724 F.3d 1268 (9th Cir. 2013).
http://espn.go.com/college-sports/story/_/id/11329099/why-ed-obannon-ruling-haunt-ncaa
Edwards,
C. (2013). EA settles with NCAA over use of images; College athletes object to
video game inclusion. FINANCIAL POST; Pg.
014 U.S. LEXIS 3311 (May
19, 2014)
Clement,
A. (2012). Law in Sport: Concepts and Cases [VitalSouce bookshelf
version]. Retrieved from
http://online.vitalsource.com/books/9781935412472/page/208
National
Post’s Financial Post & FP Investing (Canada). (July, 2014). FINANCIAL
POST; Pg. FP10
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