Anti-SLAPP Law Used To Protect Michael Moore's Use Of Video Clip

from the slapp-back dept

We’ve been covering various stories about anti-SLAPP laws — the important set of (state) laws that protect people who are sued not for any significant legal reasons, but in order to silence them — and there’s been a first ruling on Washington State’s anti-SLAPP law, which is a bit different than the typical anti-SLAPP ruling. Thomas O’Toole points us to the news that filmmaker Michael Moore has prevailed over a privacy rights claim that was brought against him. Whatever you think of Moore as a fillmmaker (and, seriously, please don’t turn the comments into a pro/con fight over Moore), this case is pretty interesting.

It involved a clip that Moore used in his film Sicko, that was sent to him by the subject of the video, but not by the guy who filmed it:

At issue was a snippet of video taken from several hours of tape Aronson shot while touring England with a friend, Eric Turnbow, in 1997. It showed Turnbow attempting to walk on his hands across Abbey Road and falling, injuring himself. It also contained a brief snatch of a song Aronson composed and sang. According to court filings, Aronson’s voice and photograph appear in 16 seconds of the tape.

Turnbow, a fan of Michael Moore’s, sent tape to the filmmaker in 2006. Moore was soliciting stories about health care outside the U.S. Turnbow’s shoulder injury was treated in a British hospital, and Moore used it to compare the health-care systems in the two countries. However, Turnbow did not have Aronson’s permission to send the tape, and Aronson never signed a waiver, although Turnbow did, according to the pleadings.

Aronson then sued, saying it was a violation of his rights, but the court tossed it out and ordered that Aronson pay Moore for filing a SLAPP lawsuit. Aronson’s lawyer, not surprisingly, was not at all happy with the ruling:

“This wasn’t a strategic lawsuit,” he said. “This is a good man who had his videotape used without his permission.”

It’s definitely true that this does seem to be a rather broad interpretation of a SLAPP, but on the whole, such anti-SLAPP results are a good thing for free speech. Threatening or suing people for making a statement of any kind is problematic if you believe in free speech rights. It will be worth watching to see if there’s an appeal in this case, as it could really bring out some questions about the limits on anti-SLAPP rulings (at least in Washington… but it could impact laws elsewhere).

Filed Under: anti-slapp, michael moore, privacy rights

Would You Confuse This Couch With Humphrey Bogart?

from the don't-bogart-that-couch dept

We’ve mentioned it in passing on this site, but one especially troubling area of what (misleadingly) called “intellectual property” law is the rise of publicity and/or privacy rights (especially in New York and California), which try to get famous people an “intellectual property” type monopoly right over their names or likenesses, even in ridiculous situations. The latest such example involves the estate of actor Humphrey Bogart, suing furniture company Ashley Furniture for creating a furniture colleciton named “Bogart.” From what I can tell, it looks like.. well, lots of other furniture on the market these days. For example, below is the sectional/recliner sofa:

Having recently gone shopping for similar couches, I can tell you first hand that they pretty much all look like that. Nothing about that couch screams “Humphrey Bogart,” and the name certainly isn’t going to make one bit of difference in the purchasing decision. It’s not as if the name makes a big difference here, so it’s pretty silly to claim that anyone is buying anything in this collection of furniture because of the association with the actor. But, that’s what happens when you get ridiculous laws like publicity rights laws, that create a monopoly right out of someone’s name.

Filed Under: couches, humphrey bogart, privacy rights, publicity rights
Companies: ashley furniture

Bev Stayart Sues Yahoo Again For Violating Her Privacy Rights

from the why-levitra? dept

You may recall a woman named Bev or Beverly Stayart, who sued Yahoo a year ago, because she was upset with the fact that the results of a search on her name pointed to sites she did not wish to be associated with and she did not believe they accurately reflected what a search on her name should show. We pointed out that there seemed to be little chance that Yahoo would be even remotely liable under a Section 230 analysis. Sometime after the post, we were sent a legal threat letter from Ms. Stayart’s lawyers demanding that we remove certain comments on that post or face a lawsuit. We responded and explained why we would not remove the comments and never heard back. However, soon after that, the court (as expected) dismissed the lawsuit against Yahoo, and also denied Stayart’s request to refile.

Eric Goldman now alerts us to the news that Ms. Stayart has filed a new lawsuit against Yahoo over a slightly different issue. Apparently (and I checked, this is true), if you are using Yahoo’s search engine, and you type in the search for Bev Stayart, Yahoo’s “suggested search” feature, offers up “bev stayart levitra” as the option after just “bev stayart.” Also, on the results page, Yahoo asks you if you want to try “bev stayart levitra” as a search instead.

Ms. Stayart is apparently offended by this connection between her name and the drug Levitra, and claims that Yahoo is responsible for the content. The lawsuit suggests that Yahoo has no safe harbor because this algorithmically generated content is created by Yahoo itself. In many ways, this reminds me of the recent lawsuits we’ve discussed in France where Google was sued for what its suggested searches put forth.

While I will refrain from commenting on my opinion of the new lawsuit, I will note that if you actually do click through on the search for “bev stayart levitra” on Yahoo, you do get a clue as to why Yahoo connected the terms. It’s because at the top of the results is the court’s dismissal of the original lawsuit, which includes the court summarizing the situation, with the following statement:

Stayart alleges that Yahoo! and Overture knowingly connected and continues to connect her name (Bev Stayart) with sexual dysfunction drugs Cialis, Viagra and Levitra on its search engine results for her.

In other words, it appears that a big part of the reason for these current results is because of the original lawsuit she filed. And, given that the new lawsuit makes regular use of these terms, you would have to figure that it will remain a commonly combined phrase online. Given all of that, I do wonder if things would have been better off if no complaint had been filed in the first place. All the original complaint did, apparently, was enhance the connection between her name and the drug Levitra in the eyes of Yahoo’s algorithm. Now, you can say that Yahoo’s suggestion algorithm is weak (it certainly appears that way), but does a bad algorithm violate someone’s privacy rights?

Filed Under: bev stayart, beverly stayart, privacy rights
Companies: yahoo

Is It Legal For A Clothing Company To Show President Obama Wearing Its Jacket?

from the it's-accurate,-right? dept

One of the trickier and more recent “intellectual property” (and I use the term loosely) rights out there is the “right to publicity” which was an odd sort of invention designed as a way for certain famous people to stop companies from putting their pictures in ads and imply endorsement. But there are some fuzzy borders here, especially when it comes to First Amendment free speech rights. Paul Alan Levy has an excellent discussion on two separate cases where publicity rights came up with regards to President and Mrs. Obama. In the first, PETA used Michelle Obama in an advertisement, as an example of someone who doesn’t wear fur. In the second, sporting goods company Weatherproof used a photo of Obama wearing one of the company’s jackets while he was in China to highlight the sort of customer they have. Levy points out that the White House was upset and complained about both uses, but likely had no legal right to complain:

As in the Michele Obama case, the White House complained, but everybody seems to agree that Obama won’t sue, not just because presidents don’t trifle with such litigation, but because Obama has no legal leg to stand on. He is a public figure and the ad is truthful — Obama did, in fact, wear its jacket standing near the Great Wall…

That is not to say that PETA and Weatherproof ran no risk when they started these ad campaigns. When receiving questions from reporters, the White House could have released statements from her denouncing PETA for extremist opposition to the use of animals in medical testing (“she thinks it is better to test on animals first instead of using poor people and prisoners”). Similarly, the White House could have told reporters, oh yes, he did wear the jacket but later decided that it is a cheap and inferior product. But instead, the White House seems to be playing along, at least with PETA, by agreeing that Obama really does share PETA’s position on furs.

Where it gets even more interesting, is that Levy notes that a reporter for the Washington Post pointed to the similarities with various media publications writing up some story about the Obamas solely to get an Obama photo on the cover, knowing that it would sell well. However, oddly, the Post reporter seems to think this is just fine for the media, but a problem when it’s someone else:

What is interesting here is the assumption that it is (mis)appropriation when a political group does it and when a clothing company does it, but not when the media do it. But isn’t is obvious that magazines were putting the Obamas on the cover to sell magazines? Givhan’s article admits that — she says, “no small part of the allure has been the sort of personal magnetism that connects with consumers as they bide their time in checkout lanes,” and quotes PETA’s preseident explaining, “It’s hard not to look at her and feel good.”

This, too, is a use of the Obamas’ selling power to sell the products of companies’ who have never received consent from the Obamas. In fact, political groups and companies as well as the media are constantly trying to associate themselves with a variety of famous personages, no matter what some “right of publicity” cases may say. It is high time to consider how far the right of publicity needs to be cut back, or whether it causes more trouble than it is worth.

Indeed. The deeper you look at the right of publicity, the more ridiculous and less justifiable it seems. It almost always serves to stifle free speech.

Filed Under: first amendment, michelle obama, peta, president obama, privacy rights, publicity rights
Companies: weatherproof

John Dillinger's Family In Lawsuit With EA Over Dillinger Name

from the protecting-the-legacy dept

A few years ago, we wrote about how the grand-nephew of famed bank robber John Dillinger claiming rights over Dillinger’s name, and threatening to sue anyone who either claims that Dillinger killed anyone (this is in dispute) or who is using Dillinger’s name and making money. Of course, he has almost no legal basis for this, but it doesn’t stop him from threatening litigation. The latest target? Video game giant EA. The gamemaker, who used “Dillinger” guns in various video games, is now preemptively taking the guy to court after he demanded millions of dollars from them — and by doing so, gets to choose a more favorable court. It’s good that EA’s being proactive about this — and hopefully a big win in court will stop others from being bullied by this guy.

Filed Under: john dillinger, privacy rights
Companies: ea

MLK Jr. Estate Threatening To Sue Vendors For Selling Products With Obama And King

from the get-over-it dept

The family of Martin Luther King Jr. has unfortunately done plenty to tarnish the great man’s legacy over the last few decades, specifically in being overly aggressive claiming “ownership” of anything having to do with King, and demanding money from various entities that show King’s speeches. A decade ago they were involved in a big legal fight with CBS for showing King’s I Have A Dream speech. Who knew that dream was locked up thanks to intellectual property laws?

Now the family is apparently threatening to sue anyone selling any kind of merchandise that includes images of King and President-Elect Obama, claiming that if others are making money off of King’s image, King’s family should get a cut: “We do feel that if somebody’s out there making a dollar, we should make a dime.” So, now, apparently that dream is to keep making money off a speech that was delivered decades ago.

Filed Under: intellectual property, likeness, martin luther king jr., privacy rights, publicity rights, speeches

Don't Say Something Bad About John Dillinger; His Great-Nephew Might Sue

from the intellectual-property-run-amok dept

Against Monopoly points us to yet another article highlighting a ridiculous end result of excessive intellectual property laws. You’re probably familiar with the name John Dillinger, the famed bank robber who was eventually gunned down outside a Chicago movie theater. Apparently, his grand-nephew is now claiming rights over John Dillinger’s name, threatening to sue anyone who refers to Dillinger as a killer or trying to profit off of Dillinger’s name. This for a man who died over 70 years ago. This idea that someone’s name is “owned” by someone else, seems pretty ridiculous, but is the result of a misreading on an already bad Indiana law on privacy rights. The law was passed in 1994 and only applies to people who died after 1994 — meaning that Dillinger isn’t covered. Also, courts have been striking back against such laws, noting that they’re problematic when they end up limiting free speech or giving someone ownership over how factual information can be used. This is an unfortunate result of too many in our society believing that ideas and information can somehow be “owned” and controlled.

Filed Under: intellectual property, jeffery scalf, john dillinger, privacy rights