tag:blogger.com,1999:blog-12505562.post116714621473797996..comments2024-03-15T11:42:21.265-04:00Comments on The Patry Copyright Blog: Copyright in Nude Photo Crushed by GrapesWilliam Patryhttp://www.blogger.com/profile/12987498082479617363noreply@blogger.comBlogger9125tag:blogger.com,1999:blog-12505562.post-61101405527025212612007-08-24T17:49:00.000-04:002007-08-24T17:49:00.000-04:00For years, MMLLC has collected fees for the commer...For years, MMLLC has collected fees for the commercial use of Monroe’s likeness, on the grounds that it owns Monroe’s rights of publicity. Those commercial licensing fees are separate from (and in addition to) usage fees that licensees pay to the copyright holders of the images.<BR/>Nova Wines is a licensee of MMLLC.<BR/><BR/>In the lawsuit brought against 4 photograhers by MMLLC - Kelley is one of them and MMLLC and CMG has lost.<BR/><BR/>Judge Morrow (in California) and Judge McMahon’s (in New York) both ruled (and agreed) that because of the wording of her will, her rights of publicity ceased to exist at the time of her death and could not be transferred to heirs, beneficiaries or agents. This decision is simple and transparently clear.<BR/><BR/>Therefore, Nova Wines did not and does not have any exclusive rights as well.<BR/>Nova's side of the case is foredoomed.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-85082855644929709852007-07-21T21:37:00.000-04:002007-07-21T21:37:00.000-04:00Marilyn Monroe is dead and so is her right of publ...Marilyn Monroe is dead and so is her right of publicity.<BR/>Additionally, the trademark use(s) by MMLLC & CMG are stripped as well.<BR/><BR/>I resent the practice of going after the little guy. I think we need to find a better balance between the rights of the many and the privileges of the few.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-65938307044514396282007-05-15T21:34:00.000-04:002007-05-15T21:34:00.000-04:00California Judge Margaret Morrow sided with the Ke...California Judge Margaret Morrow sided with the Kelley and Greene in a summary judgment dated May 14, 2007, writing that “at the time of her death in 1962 Ms. Monroe did not have any postmortem right of publicity.”<BR/><BR/>This is the same ruling that federal Judge Colleen McMahon in New York granted to the Shaw collection earlier this month.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-9458540949118868472007-05-04T15:54:00.000-04:002007-05-04T15:54:00.000-04:00Judge Patel's ruling extends to ANY photo of Maril...Judge Patel's ruling extends to ANY photo of Marilyn, whether used previously or not, on a wine bottle.<BR/>This is overly broad.<BR/>It will never hold up -Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-61366320921013384532007-05-04T14:13:00.000-04:002007-05-04T14:13:00.000-04:00Nova's rights to use Marilyn on wine were and are ...Nova's rights to use Marilyn on wine were and are based on Anna Strasburg's claimed right of publicity. New York federal court has now ruled that the right of publicity died with Marilyn<BR/><BR/>U.S. District Court Judge McMahon found that at the time of her death in 1962, Monroe did not have any postmortem rights of publicity under the law of any relevant state, including California, where she died, and New York, which was purportedly her legal residence.<BR/><BR/>Patel may have no choice now.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-1167397972550977922006-12-29T08:12:00.000-05:002006-12-29T08:12:00.000-05:00Josh, in the end, I don't think we disagree. I app...Josh, in the end, I don't think we disagree. I appreciate that the trade dress owner acquired rights during the termof the license and that those rights consist of the association of MM's image on a wine bottle. <BR/><BR/>You on the other hand state:<BR/><BR/>"Plaintiff could now substitute other photographs and retain its trade dress interests to the exclusion of the Defendant's mimicry no matter what rights the Defendant obtained from the owner of the photographs."<BR/><BR/>I agree with that too and I think you are implidly agreeing that in a suit for infringement by the copyright owner of the photograph against Nova, the copyright owner would prevail after the termination of the license. That would, as a practical matter, force the winery to substitute another image. <BR/><BR/>My difficulty with the case (obscured by the odd posture in which the issue was raised and my own lack of clarity) was a gleaning (rightly or not) from the Honorable MHP's opinon that in a suit by the photographer against the winery, the photographer would lose because the trade dress rights would be deemed superior.William Patryhttps://www.blogger.com/profile/12987498082479617363noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-1167293793417405042006-12-28T03:16:00.000-05:002006-12-28T03:16:00.000-05:00Patel got it right and your question, with much re...Patel got it right and your question, with much respect, misses the point of the rights in trade dress held by the Plaintiff here. You ask <I>how it is that someone's trade dress could consist of an unauthorized use of another's copyrighted photograph. </I> But the trade dress rights consist of the use of any photographs of MM on a bottle of fine wine to the extent that the public might be confused as to the source and origin of other wines mimicking the Plaintiff's trade dress. Whether the photographs are authorized or unauthorized is not relevant with respect to the Defendant's infringement of the Plaintiff’s rights in its trade dress. Those rights in that trade dress were acquired by the Plaintiff (and not by the owner of the photographs) at a time when the use of the photographs was authorized. Plaintiff could now substitute other photographs and retain its trade dress interests to the exclusion of the Defendant's mimicry no matter what rights the Defendant obtained from the owner of the photographs. Presumably there is a way for the Defendant to use the licensed photograph even in association with the sale of wine without infringing the Plaintiff’s trade dress. You also suggest in the post that the trade dress might consist only of the content present in the photograph. That cannot be the case because the very nature of trade dress requires a use of content in conjunction with a sale of a product of some sort in commerce and either a direct affixation of the content or a very strong association of that content to that specific product. The trade dress rights are a composite of the content and the way in which the content is being used.<BR/><BR/>Does this limit the scope of the copyright in the photographs? No, not at all. The photograph can still be licensed to a wine seller under copyright but the wine seller cannot use it in a way that infringes another's trade dress. In the same fashion, a user can license the photograph of a celebrity under copyright but cannot use the photograph in a way that would infringe the celebrity's rights of publicity. The hard case on rights of publicity would be a celebrity self portrait licensed only under copyright.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-1167246426709019102006-12-27T14:07:00.000-05:002006-12-27T14:07:00.000-05:00John, I freely confess to having a specialist's bl...John, I freely confess to having a specialist's blinders, although I previously noted that if I couldn't be a copyright lawyer I would want to be a trade dress lawyer, a sentiment that may belie a slight superiority problem. I like the Marilyn case because it teases out differences between the two fields.<BR/><BR/>My uncertainty about the opinion comes from confusion about how it is that someone's trade dress could consist of an unauthorized use of another's copyrighted photograph.William Patryhttps://www.blogger.com/profile/12987498082479617363noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-1167207195306998812006-12-27T03:13:00.000-05:002006-12-27T03:13:00.000-05:00I think copyright lawyers have a superiority compl...I think copyright lawyers have a superiority complex (no offense -- it takes one to know one) born of the notion that the intellectual property protected by copyright is somehow more legitimate, more genuine, more objectively <I>real</I> than the concoctions of Madison Avenue.<BR/><BR/>To understand the interplay of copyright and trade dress, it helps to look past the legal rules to the economic stakes. The value of a copyrighted work is intrinsic to the work, and created entirely by the author of the work. The copyright regime assigns that value to its creator, and preserves and protects the author's resulting economic interest. <BR/><BR/>The value of a trademark or trade dress is not in the work, but in the public's association of the work with a product -- the good will generated by the quality of the product. The protected work, the trademark or trade dress, may contribute aesthetic value initially, but the value of the mark or trade dress -- the good will that it garners -- is ultimately contributed by the product. A great wine can make an ugly label valuable; but not even Marilyn Monroe can rescue a bad wine. The value created by the association of the trade dress and product is properly assigned to whomever combined them, and invariably that is the producer of the product (whether he also produced the work, or as in this case licensed it from someone else). <BR/><BR/>It might help for a copyright lawyer to think of the trade dress in Nova Wines as a derivative work. The creator of an authorized derivate owns the protectible economic interest in the derivative -- the separate copyright in the derivative. Thus if an author licensed someone to produce a movie based on his novel, and retained or reacquired the right to license someone else to make another movie, the second licensee could be held liable for infringement if he copied the derivative produced by the first licensee.<BR/><BR/>The other difference between the copyright and trademark legal regimes that compels the result in Nova Wines is that trade dress protection not only recognizes and preserves the economic interest of the producer of the product that generates the good will associated with the trade dress, it also protects the public interest. The defendant's use of the Monroe photographs to market the "Red Velvet Collection" of "ultra fine wines" is very likely to confuse consumers who associate the trade dress with plaintiff's Velvet Collection. <BR/><BR/>The trade dress might be associated with a phenomenal wine of a singular vintage that hit its full maturity, and a market price of $5,000/bottle just as the copyright owner's termination rights came up. Can the copyright owner terminate the license, and adopt the former licensee's trade dress for his own line of unexceptional wine? Even if the trade dress included the infringing, unauthorized use of a copyrighted photo from the outset, you can't let the copyright owner slap the same label on a rebottled Mogen-David.Anonymousnoreply@blogger.com