MORE Right of Publicity News - Ellen DeGeneres

Based on the subject line, I'm guessing that a reader would think that Ellen has had her likeness misappropriated and is suing for damage(s).  Rather, the tables are turned and the celebrity talk show host and comedienne is in the hot-seat. Several news sources reporting that a Georgia real estate agent (Titi Pierce) has filed suit against Ellen DeGeneres (and probably all the entities related to the show, as well as other individuals involved with production, etc.), alleging defamation, false light invasion of privacy, misappropriation of likeness and intentional infliction of emotional distress for mispronouncing the agent's name ("titty" instead of "tee-tee") and publicizing the agent's telephone number in connection with the telecast.

The episode originally aired on February 22.  Had that been the lone instance (or had the producers engaged in some sensible editing), then it is unlikely this would have progressed to this stage.  However, the show re-aired on April 15 with no changes.  A clip of the segment posted to Facebook was edited to blur the agent's phone number.

That's not to suggest that I necessarily agree that the agent has a cognizable harm with recoverable damages; without more it is difficult to make such a determination.  Some of that will be determined by how much harm can result from mispronouncing a name to invoke one of the anatomical parts of our bodies that distinguishes the genders/sexes.  IF the agent has proof of the resulting phone calls (allegedly numbering in the 100s) and there are messages that are arguably harassing then a judge/jury is going to have a difficult time allowing Ellen et al. off the hook for liability; measuring the monetary value of such harassment may prove more difficult, esp. for essentially a non-public figure.

(Cosmo) Kramer Teaches the Importance of an NDA

As it perpetually cycles through its Seinfeld inventory, last week TBS aired one of the early episodes ("The Pick") showing the entrepreneurial spirit of (not-yet Cosmo) Kramer.  "The Pick" is thematically connected to the previous season's "The Pez Dispenser" episode because of Kramer's concept for a fragrance based on the smell of the beach. In season three's "The Pez Dispenser", Kramer labels his fragrance "The Beach".  Through an acquaintance of Jerry's, Kramer gets an opportunity to pitch "The Beach" to an executive at Calvin Klein.  But, that is as far as the pitch goes, and to Kramer's knowledge, the idea dies a quick if not bloodless death.

Yet, in season four's "The Pick", Jerry begins dating an attractive model photographed for Calvin Klein's advertisement for the new fragrance "The Ocean".  The model visits Jerry in his apartment sporting the new fragrance, and despite his best efforts to keep the model (Tia) and Kramer from crossing paths, Kramer discovers the scent and declares (to Jerry) that CK had ripped off his idea: "I could've been a millionaire.  I could've been a fragrance millionaire!!"  Kramer confronts Calvin Klein, but allows himself to get sidetracked by an offer to model men's underwear for CK.

There are several important lessons in this episode for entrepreneurs and innovators.  First, if one believes s/he has a valuable idea, concept, or product, one should try to envelope the idea/product in some form of protection.  At a bare minimum, one should disclose a proprietary idea to an outside entity only if the entity will execute a non-disclosure agreement (NDA).  An NDA binds the parties from engaging in the unilateral disclosure of the proprietary information received.  Any unilateral / unauthorized disclosure of the non-public/proprietary information would (potentially) be actionable as a breach of contract claim.  However, NDAs are problematic because even if one proves a breach occurred, the damages for such a breach are often highly speculative.  Consider:  how does a judge or jury evaluate the commercial value or potential of an idea/concept that likely has few if any antecedents in the market?

Accordingly, an NDA should be only one of the several arrows drawn from the entrepreneur's quiver.  In addition to an NDA, one should consider the use of a provisional patent application, esp. in light of the US's move to a first-to-file application system (an abandonment of the first-to-invent system).  Without a provisional patent application on file prior to disclosure to a third-party, even if an NDA is used, the novelty of any inventive subject matter is forfeited and the validity of any claims issuing from the subject matter will be in serious jeopardy.  The ease (and relative low cost) of filing a provisional patent application, and the twelve-month secrecy in which it exists, also allows the innovator to abandon the patent pathway for trade secret protection if it becomes evident that trade secret protection is more beneficial than one or more issued patents.

The most conservative route includes waiting for the issuance of one or more claims in a patent issued by the USPTO, in combination with an NDA and/or other beneficial contractual clauses.  However, the major draw-back of waiting for an issued claim (and patent) is that an inventor is likely pushing off commercial enterprise by three-to-five years as the administrative examination process moves at a less-than-optimal pace.  Yet, there may be limited circumstances where this strategy makes the best sense.

Looking back, Kramer would have been better off to use an NDA with Calvin Klein, while also utilizing the quick and low cost of the provisional patent application system to put him at the head of the line (and protect against the alleged theft that occurs after "The Pez Dispenser" episode).  Had Kramer had these two pieces of the puzzle in place, and had Calvin Klein proceeded with manufacture and/or sale of "The Ocean", Cosmo would have had several options in cutting the knees of Calvin Klein, and may have had a good shot at a significant monetary damages award (or a hefty settlement to save both parties a lot of litigation costs).

If, like Kramer, you have a fun idea or concept that you want to present to another business, but you want to prevent your idea/concept from being taken without any potential for compensation, please contact me and my office (olyork at gmail dot com) for a consultation on what options you may have to protect your intellectual property.

Former Van Halen Vocalist: VH Brothers Trying to Stop Hagar from Performing VH Songs

As readers will (hopefully) come to learn, Van Halen (all eras) is my favorite band, for a laundry list of reasons that I won't bother to list in this post.  However, as a fan of the band, one has to either ignore or accept the juvenile passive-aggressive non-sense that passes from the mouths of present and former members.^[1] It is futile trying to really understand why this group of people, comprising mostly 60+ year-olds, cannot simply move-on from decades-long disagreements, arguments, grudges, and feuds.  It defies reason. The latest:  on Eddie Trunk's podcast this week (approx. 31:00), former Van Halen vocalist Sammy Hagar alleged that Edward and Alex Van Halen have tried to stop him from performing Van Halen songs written and recorded during the Hagar-era of the band.  As an example, Hagar was scheduled to record an episode of "Live from Daryl's House" (Daryl Hall of Hall & Oates fame).  Hall wanted to duet with Hagar on VH Top 40 hits "Why Can't This Be Love"^[2] and "Finish What Ya Started"^[3] .  Apparently, this required some type of licensing approval, and the Van Halen Brothers denied the request and blocked any attempts to perform the songs. Show producers did not want to try and fight this issue with a recording-deadline looming, so the songs went untouched during the recording. ** SIGH **

Assuming this version of events and facts as true, it is bad enough that the brothers are that petulant to try and block Hagar's Daryl Hall performance, but the fact that Hagar publicized this example knowing that the Van Halens could not legitimately block him (or any other performer(s)) from performing these songs live is similarly silly and unnecessary.

Most issues addressed in the Copyright Act (17 U.S.C. et seq.) are default positions. In other words, absent a contract addressing a particular issue, the parties resort to the Copyright Act for determining unassigned or non-transferred rights. For example, in most cases, co-writers of a song (including music and lyrics) each own an equal share of the song, unless there is a contract to the contrary.

Accordingly, unless there is a contract between the Van Halens and Hagar that has changed the songwriting shares, or otherwise restricts/prohibits performances in some way, Hagar as a co-writer has the rights accorded by the Copyright Act, owning an equal share of the credits with the Van Halens and former bassist Michael Anthony. One of those rights includes the right to publicly perform such compositions subject to the reporting required of the host-venue to the appropriate performing rights organizations (PRO, such as ASCAP or BMI).^[4] Similarly, co-writers also have the right to record/distribute sound recordings subject to accounting to the other co-writers.

Of course, the public is hearing only one-side (Hagar's) of these issues at the moment. Perhaps the Van Halens have legitimate reasons for pursuing the courses they have pursued thus far, given the acrimonious and distrustful state of affairs between the brothers and Hagar (and Anthony).

It is odd (if not notable) that Hagar did not make specific mention of the brothers trying to stop the release of Hagar's "The Circle" live recording entitled "At Your Service" containing seven songs co-written by Hagar and the Van Halens, but did mention the block of two songs from "Live at Daryl's House". Does Eddie Van Halen have a burr in his backside over Daryl Hall's public comments that Van Halen's keyboard parts in "Jump" were inspired by the piano riff in Hall & Oates mega-hit "Kiss On My List"?^[5] As noted in the current Billboard Magazine cover article, Eddie Van Halen does not appear to hate anyone, but his grudges run long and deep.^[6]

Or, on the other hand, did the Van Halens bully the last-minute production of Daryl Hall's television show based on opportunism while avoiding "The Circle" live disc because it knew the futility of doing so? More than likely, because the acrimony and overall distrust between Hagar and the Van Halens, this is little more than power trips and egos at play. But, there may also be some underlying accounting issues that have been bubbling that the public is not aware of.

Hagar and the Van Halens squabbling over music is hardly surprising. The strong egos of those involved make future disagreement(s) inevitable. Just another sad episode in the Van Halen melodrama.

Footnotes

1. Despite the high-drama, Van Halen still has a fairly strong and devoted following, as exemplified by the robust fan-site VH Links. 2. "Why Can't This Be Love" was the lead-single from Hagar's debut with Van Halen, the 5x platinum 5150 released in April 1986. "Why Can't This Be Love" peaked at #3 on Billboard's Hot 100 Singles Chart in May 1986; 5150 debuted at #13 on Billboard's Top 200 Album Chart, peaked at #1 for a three-week run, and spent more than one-year on the chart. Additional information may be found at 5150 Info. 3. "Finish What Ya Started" was the third single from Van Halen's May 1988 release OU812. The song was a departure for Van Halen, blending rock, country, and an exotic drum sound and beat, sounding as much like a Rolling Stones song as a Van Halen tune. "Finish What Ya Started" peaked at #13 on Billboard's Hot 100 chart; OU812 debuted at #1 on Billboard's Top 200 Album Chart and spent four-consecutive weeks in the top spot. 4. ASCAP and/or BMI distribute royalties to songwriters and publishers based on frequency of play from reports by terrestrial and satellite radio, Internet streaming services, concert venues, and the like. 5. 5 Things About Jump 6. Billboard - EVH on Addiction, Roth, Touring