A principal part of this blog is to include music in at least one link in each post. For this post, the subject is music, good music, classic classic rock music (P.S. its Jimi Hendrix!), so the decisions on which song(s) to include were much easier and a heck of a lot of fun. P.S. There are at least four classic songs linked here, so enjoy reading / jamming on with Jimi.
Publicity Rights are often overlooked in IP. The Right of Publicity is not a federally protected right like patents, copyrights and trademarks, except to the extent it overlaps with trademark rights, which is not uncommon as shown below. Publicity Rights are also protected by approximately 28 state’s statutes, for example in the state of Washington, which we will also discuss below with respect to the great Jimi Hendrix.
When folks become famous, people rush to make money off of their fame. Most recently, as reported by Trademarkology, Auburn head football coach, Gus Malzahn (a delightful guy to watch coach), has filed for trademark rights in “HURRY UP NO HUDDLE” and “HUNH.” According to Bill Ferrell and Randy Michels at Trademarkology, an intruder, C.O. Branded Corporation has similarly applied for trademark rights in “GUS BUS” and “IN GUS WE TRUST.”
Not surprisingly, Auburn on behalf of Coach Malzahn said, “MOVE OVER ROVER,” and let Auburn take over (can you feel the heat coming off her “fire” in that song?). Via their opposition to the registration of these marks by C.O. Branded Corp., Auburn is calling out C.O. Branded for attempting to squat on Coach Malzahn’s rights to the use of his name. We will leave to one of the Joes at the TTAB to decide if Auburn has a “GUN IN IT’S HAND,” with their opposition.
Have you had enough football this year to give you a PURPLE HAZE? Is that possible? To have enough football, I think not!
You get the picture on Publicity Rights with respect to a living person, like Coach Malzahn. As reported by the Internet Law Treatise, lawsuits and disputes over a person’s likeness have included all sorts of “interesting facts,” including rock star pornography, and also recently a short-lived case over alleged rights to a prominent cocaine dealer’s name.
Well, the type of Publicity Rights we started to talk about here involve a deceased person’s name and likeness, specifically the Greatest Guitarist of All Time, Jimi Hendrix. Proving again that Only the Good Die Young, Jimi passed this world way too early in 1970, not long after Woodstock closed with his playing Hey Joe (Woodstock version linked here again just in case you missed it above). Jimi’s legacy is legendary, so much so that my 17 year old son (i.e., born in 1996) came home the other night to show me a video of his friend playing “All Along the Watchtower.” Also, he is one of very few people that will remain known by one name only – Jimi.
So, if Jimi died in 1970, why are people still litigating over his publicity rights over 40 years later? The story involves the company that owned the rights to distribute Jimi’s music and assigness of rights to his image, artwork and songs. In March of 2009, Experience Hendrix, L.L.C., as assignees of Jimi’s image, songs and artwork, sued Hendrixlicensing.com LTD, the company with rights to distribute products containing Jimi’s name and image. So, if Jimi died in 1970 as a resident of New York, why did this dispute arise in 2009 in the state of Washington? The answer is the Washington state statute known as the WPRA, first enacted in 1998 and later amended, and in the fact that New York’s laws in 1970 when Jimi passed did not recognize any post-mortem rights of publicity for Hendrix’s estate heirs.
As @EriqGardner reported in 2011, after the Washington district court dismissed the claims by the Plaintiff on grounds that the WPRA was unconstitutional as it purported to grant dead celebrities rights retroactively. As noted by Michael Atkins (The Seattle Trademark Lawyer), the WPRA has also been criticized for its incentives to forum shop, specifically by encouraging dead celebrities’ heirs to file suit in Washington state in attempts to take advantage of the WPRA.
That’s pretty much the story for this post. The case could provide facts for a semester’s worth of law school exams, and according to Pacer and Westlaw, some issues are still being resolved on appeal.
I hope you enjoyed the music.
Resources:
@faberlaw provides a convenient account of approximately 28 states that have enacted statutes to address Publicity Rights. Note, that New York now has a Publicity Rights statute, and there is an amendment proposed for 2013.