Techdirt. Stories filed under "actors"

Sony Sues Actor For Trademark Infringement For Looking Too Much Like Himself In Another Commercial

Zachary Knight — Tue, 9 Oct 2012 13:40:00 PDT

Just when you thought trademark law couldn't get any stranger, we have a new story that takes it to a whole new level. Most often, trademark law is applied to logos and names of goods and services, yet there is still some untested ground. This is where Sony comes in. Several years ago, in an effort to rebrand its floundering Playstation 3 brand, Sony created a fictional Vice President of the Playstation brand named Kevin Butler. This character and the ads he starred in became a gaming sensation and brought the Playstation 3 back into the limelight. Here is a sample of these advertisements.
Such success never lasts, and earlier this year, the contract Sony had with Kevin Butler actor, Jerry Lambert, expired and he has moved on to other contracts. One of these new advertisement contracts is with Bridgestone Tires. Unfortunately, Lambert has starred in one ad that now has Sony up in arms. This ad features Jerry Lambert starring as an unnamed Bridgestone engineer along side two other actors portrayed playing a Nintendo Wii. This ad has resulted in Sony going over the edge, so to speak. The entertainment and electronic giant is now suing Bridgestone and Wildcat Creek, the corporation set up to manage Lambert's advertising career, for a variety of reasons, one of which is trademark infringement. You can view the original Bridgestone commercial at GoNintendo.

Sony Computer Entertainment America filed a law suit against Bridgestone and Wildcat Creek, Inc. on September 11. The claims are based on violations of the Lanham Act, misappropriation, breach of contract and tortious interference with a contractual relationship. We invested significant resources in bringing the Kevin Butler character to life and he's become an iconic personality directly associated with PlayStation products over the years. Use of the Kevin Butler character to sell products other than those from PlayStation misappropriates Sony's intellectual property, creates confusion in the market and causes damage to Sony.

This statement is a tad confusing on first blush. It reads as if Sony is claiming trademark on the Kevin Butler likeness rather than the character itself. As such, it would seem that Sony is making the claim that Lambert starring in any commercial could cause likely confusion among consumers, resulting in them thinking that Kevin Butler is endorsing another product. This is rather absurd though. Primarily because the character Labert portrays has no name and actors portray many different characters throughout their careers.

Thankfully, the Hollywood Reporter has provided some further clarifications on the matter. Here we learn a bit more about the exclusivity clause in Lambert's contract.

According to a complaint filed in California federal court, the contract between Sony and Wild Creek was entered into on August 7, 2009 and contained an "exclusivity clause" that prevented Lambert from providing his services or his likeness to competing gaming system manufacturers like Nintendo.

This part at least makes some sense. A lot of contracts will contain language that prevents an employee or other contracted company or individual from working for a direct competitor for a specified time. However, to claim that the commercial with Bridgestone, a tire company, meets this definition is a stretch, even if the commercial features a Nintendo Wii. Sony then claims that Lambert's work with Bridgestone is a breach of contract, unfair competition and tortuous interference. These are quite harsh accusations and Sony will have its work cut out for it.

Next is the claim of trademark infringement.

According to the lawsuit, "With the intent of unfairly capitalizing on the consumer goodwill generated by 'Kevin Butler,' Bridgestone has used and is using the same or confusingly similar character, played by the same actor, to advertise its products or services in the commercial."

Having seen both a Kevin Butler commercial and the Bridgestone ad featuring Lambert, I find it hard to see the similarities beyond the superficial. The Kevin Butler character plays as an overly-serious and often hyperbolic character to its comedic levels. The Bridgestone ad features an excitable and fast talking character. Aside from that, Kevin Butler was built to be a VP while the Bridgestone guy is merely an engineer in an R&D department.

These differences are not going unnoticed by Bridgestone either. It has made the claim that not only are the characters different, but Sony has no actual claim on the Kevin Butler character at all.

"Mr. Lambert is one of the actors who appeared in the commercial as a Bridgestone engineer," say the defendant. "Bridgestone denies that 'Kevin Butler' appears in the Bridgestone commercial discussed herein and thus denies that he speaks or does anything whatsoever in the commercial."

Bridgestone indicates that it intends to fight the lawsuit by showing that Sony has failed to register any mark on "Kevin Butler," that the character has not acquired secondary meaning and that there is no likelihood of confusion among consumers.

This is certainly not the first time something like this has happened. Many years ago, Wendy's had a very successful advertising campaign starring Clara Peller as a little old lady asking a generic fast food chain the famous question, "Where's the beef?" She lost her job with Wendy's after she starred in a Prego commercial uttering the phrase: "I found it. I really found it."

What these accounts show is that the ownership mentality of many corporations goes beyond logos and phrases, to specific actions, characters and the actors behind them. This is certainly a dangerous line of thought for anyone to take up. While Sony most likely has a vested interest in the Kevin Butler character, claiming that its interest in the character extends as far as the actor himself is certainly going to make Lambert's career more difficult potentially to the point of halting it. If he cannot star in any commercial for fear of looking and acting too much like himself, then what point is there in continuing in an acting career?

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Remember: Actors And 'Pirates' Can Be The Same People

Mike Masnick — Wed, 14 Sep 2011 15:07:30 PDT

Ron Rezendes points us to a story about how a Screen Actors Guild (SAG) member is pleading guilty to a single count of criminal copyright infringement for uploading screener copies of some movies that he only had access to because he was a SAG member. I still think it's a little silly that this is a criminal complaint rather than a civil complaint, but that's an issue with the law itself. What strikes me as a more important point concerning this story is the simple fact that it's a SAG actor doing the leaking. This is a lot more common than people realize. The MPAA keeps insisting that there are "evil pirates" out there trying to harm actors and others in the industry. But what that ignores is that time and time again studies have shown that a large percentage of these leaks come from actors or others in the industry. Insider leaks are a key source of such content. This doesn't make it right, or legal, or anything like that. I'm merely pointing out the whole "us vs. them" mentality pushed by the MPAA is inaccurate and misleading. Very often the "them" the MPAA wants to blame are the very people they claim they're trying to help.

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Samsung Hires 'Actors' To Pretend To Be Happy Galaxy Tab Testers?

Mike Masnick — Fri, 25 Mar 2011 15:29:00 PDT

I'm still waiting for Android tablet computers to catch up to the iPad in terms of usefulness, and I'm guessing there's probably still another year or so to go (if the phone market is any predictor). Samsung, of course, has been leading the push for Android-based tablets and they made some news with the launch of its latest version of the Galaxy tab at CTIA. Indeed, the new devices do look pretty neat. But why spoil genuine appreciation of the device when you can hire actors to pretend to like the device... and then claim to the world that they're not actors at all? That appears to be exactly what Samsung did. Much of the launch focused on these interviews with three "regular folks" from "different backgrounds" who were given a chance to test out these new tablets and then be interviewed about them. You can see the full launch video here, and the "interviews" start around the 8 min mark. Intrepid blogger Harry McCracken thought the interviews felt a bit off... and a bit too full of corporate marketing-speak. So he decided to go searching for "freelance travel writer Joan Hess, independent filmmaker Karl Shefelman, and leading real estate CEO Joseph Kolinksi." And he ran into some difficulties: I was curious to learn more about them. So I Googled around and couldn’t find any references to a travel-writing Joan Hess (one with, as she said, a following on Twitter) or a real-estate CEO Joseph Kolinski.

I did notice, however, that freelance travel writer Joan Hess bears a striking resemblance to New York actress Joan Hess:
And that real estate CEO Joseph Kolinski could be New York actor Joseph Kolinksi's twin brother:
Filmmaker Karl Shefelman, on the other hand, looks a lot like... filmmaker Karl Shefelman. Who works for a New York production company. One that's done work for Samsung.
Of course, some people will claim that this is standard operating procedure and that everyone should assume that anyone in such a video is clearly an actor, rather than a real person speaking off the cuff. But this is a press launch event and the clear implication by Samsung officials is that these were real people and real interviews. If the product really is as great as they say, why not actually trust real people to say that, rather than hiring actors?

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Monster Madness: Monster Energy Drink's Hired Trademark Trolls Go After Movie Monster

Mike Masnick — Tue, 20 Oct 2009 13:51:53 PDT

We've recently covered how beverage company Hansen's hired a company called Continental Enterprises, who has a long history of abusing trademark law for profit (i.e., getting big companies to allow it to send threat letters to anyone who in any way uses a mark, even if it's clearly not a violation of trademark), and because of that, a small Vermont brewery and a beverage review website found themselves on the receiving end of legal threats.

Apparently, the monster madness doesn't stop there. Andrew points us to the news that that Continental Enterprises, on behalf of Hansen's and Monster Energy Drink has also threatened a working actor who was in a monster movie a few years ago, and had a photo taken of himself in costume holding a Monster Energy Drink. This amusing joke photo is apparently too much for the fine folks at Continental Enterprises, who insist it's "advertising and/or selling products that are confusingly similar to Monster Energy Drink" and demand that he cease and desist.

At what point does Hansens and Monster Energy Drink realize that in this deal to outsource trademark bullying to Continental Enterprises, they've done significantly more harm to their own brands?

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Writers' Guild Claims Studios Ignoring Earlier Settlement As Actors Get Ready To Strike

Mike Masnick — Tue, 25 Nov 2008 18:18:00 PST

While I have no doubt that the movie studios are being sleazy and underhanded in how it deals with both writers and actors concerning various contracts, it still seemed like both movie and TV writers were making a big mistake in demanding residuals for internet usage. All that does is make it more difficult to get that content online. And, of course, it meant that actors were going to fight for the same thing.

Now, just as the studios and actors had their negotiations breakdown, the Writers' Guild is claiming that producers are not living up to their end of the deal struck earlier this year. The writers claim that they're not getting the promised residuals, and the producers seem to be disputing which content is covered by the agreement. The writers say that all modern content from the past few decades is covered, while producers say the agreement only covers content made after February 13th of this year -- the date of the settlement.

To be honest, the whole dispute is rather silly. Any such system of royalties is going to break down. It may have worked in the past, but it's based on that same old concept of artificial scarcity that makes it more difficult to adapt to the modern economic reality of digital content. By insisting that the studios have to pay residuals on content reused on the internet (effectively getting writers and actors paid multiple times for the same work), it just solidifies the barriers for the folks who employ those writers and actors to adapt to the modern economic and technological reality. The writers and actors are just harming themselves by making it harder for studios to move into the internet era, adding tremendous additional costs beyond what was already paid for.

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Orange Pays Actors To Stand In Line For The iPhone

Mike Masnick — Fri, 22 Aug 2008 06:04:15 PDT

When the disco era was dying, the story was that the famed Studio 54 in New York had to start paying people to stand out front in line, so that it still look the club was still a happening place. Is the same thing happening with the iPhone? Over in Poland, mobile operator Orange is happily admitting that it's paying actors to stand in line to wait for the launch of the new iPhone: "We have these fake queues at front of 20 stores around the country to drum up interest in the iPhone." That seems like a rather blatant admission that the phone itself isn't enough to drum up interest. Somehow, though, I don't think the iPhone is going the route of disco just yet.

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Actors Now Fighting For Royalties That Will Make It Harder For Big Studios To Compete

Mike Masnick — Mon, 12 May 2008 08:44:00 PDT

After the TV writers' strike from earlier this year, we noted that the final settlement actually was not in the best interest of the writers, even though they got much of what they wanted in demanding royalties from online usage of their content. The actors unions are now gearing up for that same battle, as well, as they, too, are demanding rights over online usage, including royalties and the right to demand permission before any of the works they appear in can be used online. It's difficult to feel sorry for Hollywood producers here -- as they very much brought this on themselves, convincing lots of people that they should get paid every single time any of their content was used. Thus, it's no surprise that the writers and the actors are now demanding the same rights.

However, just as it was wrong for the producers to be demanding a fee for every usage, so is it wrong for the writers and the actors to be demanding such a fee. All it will do is make it much more difficult, time consuming and expensive for any of that content to go online. And that will open up much wider opportunities for other content to go online instead, decreasing the overall value of the content made under these agreements. It's hard to fault the actors (like the writers) for looking out for their short-term interests and demanding the same sorts of things that the producers have demanded of everyone else -- but it's setting up a bad situation over the long-term, where the studios under these agreements won't be able to adapt to the changing media landscape.

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