What does President Trump own?
April 5, 2019
If there is one singular, defining character trait of Donald
J. Trump, it is this: he really, really
likes putting the TRUMP name on things. Hotels, casinos, residential towers, television
shows, books, golf courses, beauty pageants, steaks, universities, business
plans, and on and on. It is kind of his thing. And he is exceptionally good at
marketing the Trump name when he uses it.
The moment Donald Trump ran for president, and was
subsequently elected – the ways he could use market that TRUMP brand grew
exponentially. And I do not use the term “brand” lightly. Because for someone
like me, the underlying question is this: what IP rights in his name and
likeness does Donald Trump still own? Most recently, Trump has put the TRUMP
brand on images of the White House. These images are now subsequently being
sold online and at his various hotels.
have written about some of these issues before,
and once again, I will not try to address any issues with the emoluments clause
of the Constitution. Nor will this article be about the purported morality of
such things, but instead an analysis of what IP rights are available for
protection. Can President Trump own copyrights of his image? Can President
Trump use the TRUMP name as a trademark and protect it like a private citizen?
Can President Trump use White House and U.S. government imagery in tandem with
his name and assert personal rights in these products? It is not such an easy
Alfonso Ribeiro sues video game makers over the “Carlton Dance”
December 19, 2018
On Monday, December 17, 2018, Alfonso Ribeiro, an actor best known for roles on “Silver Spoons” and “The Fresh Prince of Bel-Air,” filed two separate lawsuits regarding copyright and publicity rights associated with what is colloquially known as the “Carlton Dance.” Ribeiro sued the makers of the popular Fortnite and NBA2K games for their allegedly unauthorized uses of this dance choreography. His causes of action are based on copyright infringement, violation of publicity rights (California state law), and state and federal unfair competition claims.
The lawsuit(s) begin by asserting that Ribeiro is “an internationally famous Hollywood star, known for his starring role as Carlton Banks from the hit television series The Fresh Prince of Bel-Air and as host of America’s Funniest Home Videos. Ribeiro created his highly recognizable “Dance,” that has also been referred to by the public as “The Carlton Dance,” which exploded in popularity and became highly recognizable as Ribeiro’s signature dance internationally. The Dance is now inextricably linked to Ribeiro and has continued to be a part of his celebrity persona.” The lawsuits later allege that “The Dance has become synonymous with Ribeiro.” In short, these assertions are wildly debatable. Given the national attention this case has received, I would like to look at some of the legal issues raised by these lawsuits and address the possible and likely defenses to Ribeiro’s claims and contentions.
Last night, the Philadelphia Eagles defeated the New England Patriots to win Super Bowl LII®. By this point, the Super Bowl is more than just a football game. It is a literal spectacle, above and beyond the athletic competition itself. Not only do viewers get exposed to the glitz and glamour of the biggest game of the season, but there is also an extra-long halftime special. Not to mention the heavily-discussed commercials. Often, marketing firms will hire celebrities to appear in these commercials to add a little extra pizzazz. Of course, these celebrities usually agree to appear in these advertisements beforehand, with full knowledge that their likeness is being used for commercial gain. This year’s Super Bowl went a step further.
Prince, Martin Luther King, Jr., and Kurt Cobain are some of the most iconic individuals in American history and pop culture. They were also fiercely protective of how their names and images were used when they were alive. Today, their respective estates or other third-parties control how their “publicity rights” and how their likenesses are marketed. Yet somehow each of these three were all featured in different ways during the Super Bowl telecast, often in direct contrast to how they would have presented themselves during their lifetimes. How is this legal? I will try to address this interesting cross-section of trademark, copyright, and publicity right issues here.
Can musicians and artists legally demand that politicians not use their works?
Recently, the Rolling Stones sent a notice to Donald Trump demanding that he cease using their songs at his campaign events across the country. This is not the first time an artist has objected to a politician using certain songs or related works in conjunction with a political campaign. It is practically a rite of passage for a high-profile politician to anger a musician with a particular choice of campaign theme song. This is an American trend that dates back at least to the early 1980s, when Bruce Springsteen upbraided President Ronald Reagan for using “Born in the U.S.A.” as part of his re-election efforts.
Of course, the Rolling Stones are not an American band. Plus, by now we all know that Donald Trump is not exactly the type of person to back down to what may be a toothless demand. Trump might all too willing to cite 250 years of American history by telling the Rolling Stones to take their demand and shove it. He thrives on this type of attention after all. But that is not the question. The real question is this:
Can Donald Trump (or most any politician) use any song they want for a campaign without obtaining the musician’s permission?
Last weekend, The Hunger Games: Mockingjay – Part 2 made over $100 million at the box office. The movie’s success is largely due to the strength of Jennifer Lawrence and the popularity of the books. Enough digital ink has been spilled discussing the movie as a dystopian political outlook for young adult audiences. Instead, here we repurpose the world of Panem as if it adopted the intellectual property laws currently in the United States.
Accordingly, under that hypothetical, what trademark and publicity rights does Katniss Everdeen have? Did the rebels and/or the nation-state of Panem violate or infringe any of these rights by exploiting her image as the “Mockingjay”?
[mild spoilers ahead, proceed with caution if you have not seen the movie]
[originally published on October 13, 2015 at www.law-dlc.com]
As a sports fan, Monday, October 12, 2015 was a strange and turbulent day. USC fired Steve Sarkisian one day after asking him to take an administrative leave of absence (cue the employment lawyers). Steve Spurrier, the head coach of the other USC – South Carolina – suddenly walked away and called it a career in mid-season. Meanwhile, Texas Governor Greg Abbott congratulated the Astros on making the American League Championship Series when they were leading 6-2 in the eighth inning, only for the Royals to score five quick runs and turn me into a blubbering mess of a baseball fan. Someone in the governor’s office forgot about Yogi Berra and “it ain’t over ‘til it’s over.”
Yet the craziest sports story of the entire day might be something that happened over social media. In the mid-afternoon, the Twitter accounts for Deadspin (@Deadspin) and SB Nation’s GIF-based sub account (@SBNationGIF) were suddenly suspended. The initial reasons were murky, with media reports later suggesting that the National Football League used its influence with Twitter to suspend the accounts. And why? Because the Deadspin account and the SBNationGIF account both routinely posted or re-tweeted Vines and GIFs of highlight plays from NFL games. Which are copyrighted works.
[originally published September 25, 2015 on www.law-dlc.com]
Have you ever watched a movie and wondered whether something cool in it could be patented? Many movies, however, are set outside the United States. Some are set in fantasy lands that would not recognize our system of laws. Yet – what if? What if, for example, the mythical country of Florin happened to adopt the laws of the United States as it applies to intellectual property rights? Yes, Florin. The homeland of Buttercup. You know – The Princess Bride. What if the cowardly Prince Humperdinck recognized and enforced patent, trademark, copyright and trade secret concepts as seen in that movie? Inconceivable, you say? But what would that look like and what would be some examples?
[If you have never seen The Princess Bride, kindly stop reading and go watch it. Now. I do not think I can be friends with anyone who does not like this movie.]
I will skip the kissing parts and go right into the action and adventure. Pirates are cool, right? To the land of Florin we go!