Distasteful criminal case sheds light on liability for violent user generated content

A New York court convicted the “Cannibal Cop” trial in for conspiracy to kidnap, murder and eat women for pleasure based on postings made by the defendant on darkfetish.net. The defendant intends to appeal. The question on appeal boils down to whether the defendant’s online fantasy role play provided the mens rea (criminal intent) to conspire to commit murder. The line of judicial opinions concerning liability for deaths or injuries allegedly caused by violent media stretches back to 1950’s era censorship laws finding such laws are unconstitutional as they place a prior restraint on speech. In today’s user generated content and gamification of nearly everything, when doe role-playing cross the line to real-life crime? (more…)

Can a celebrity’s post mortem right of publicity enter the public domain?

Banking on a dead celebrity’s right of publicity being public domain is an extremely dangerous advertising practice. Rights of publicity are a suite of legal rights that have developed from invasion of privacy and trademark law since the early 20th Century. There is a web of state and federal laws that can protect dead celebrities– even celebrities from states like New York that specifically do not recognize a post-mortem right of publicity. And the laws can protect rights of publicity for as much as 100 years after death.

As a young lawyer, a common task was determining which state laws apply to a dead celebrity so to determine whether his or her name or image could be used for free.  The analysis is extremely detailed. Which law applies, New York (no protection) or California (broad protection)?  Does the use violate the celeb’s trademark or constitute a false designation under federal law?  An article in Slate today made some stunningly dangerous over-simplifications about how a dead celebrity’s persona is protected.

In my entertainment and sports law seminar, we spend a few classes examining the various ways of protecting a persona. A right of publicity protects the commercial value of a celebrity’s persona. A 1941 Texas case involving Davey O’Brien is my hands down favorite for explaining the basis for protecting a celebrity’s right of publicity. The Texas court gets the analysis wrong, and a dissent by Justice Holmes provides the foundation for modern ROP laws.

All American and Heisman award winner Texas Christian University quarterback Davey O’Brien (more…)

“Don’t be a Clown Bro,” Heavy hitters weigh in on protection of pro athlete catch phrases

Can professional athletes’ get exclusive rights to catch phrases like “DON’T BE A CLOWN BRO,”? 

OberIPwatch’s Scott Johnson says that if catch phrase is is associated with the athlete, a catch phrase can become part of the athlete’s persona. Johnson was quoted in Sunday’s Maryland Daily Record article by Matt Owings:

“…their persona is a brand,” Johnson said. “I don’t see it as something to take away from their accomplishments as athletes. They have to continue to do that or no one will care about their trademarks.” Johnson sees the trend as a simple rise in the awareness of athletes and their representation. “As time goes on, there’s more of a perception of a value of intellectual property,” he said.

Under Armor is already cashing in on Nationals rookie Bryce Harper’s fledgling persona with “Don’t be a Clown Bro” tag line t-shirts.  Read it at the Daily Record here

Last Fall on OberIPwatch, Johnson weighed in on Cafe Hon’s catch phrase woes. The owner of Cafe Hon created a firestorm of press coverage when she attempted to police her HON trademark against Baltimoreans claiming cultural ownership of  “Hon”,  Baltimore’s homegrown term of endearment.  The bad press was not good for business.  Eventually Gordon Ramsay convinced Cafe Hon to abandon its HON trademark registrations as a public gesture of goodwill.



Jamaica USA, Mon! Seacrets Wins Trademark Infringement, Injunction Against Coryn Group

With summer around the corner, it is only natural that our thoughts and attention start to shift to the shore.  If you are from Mid-Atlantic, you are likely familiar with Seacrets (http://seacrets.com/), one of Ocean City, Maryland’s premiere entertainment destinations. Seacrets, which has nicknamed itself “Jamaica, USA”, started in 1988 as a single cabana type bar and has exploded over the last couple of decades into a huge entertainment complex, complete with 18 separate bars, six stages, a hotel, a private beach, and its own radio station!

During this explosive growth, Seacrets obtained a trademark registration for its name with the United States Patent and Trademark Office.  Seacrets did so with the thought that it might expand out of Ocean City and establish franchises throughout the United States and, possibly, in Mexico and the Caribbean.  Seacrets was sued for trademark infringement by the Coryn Group, which operates a chain of luxury resorts in Mexico and the Caribbean called “Secrets”.  Seacrets countersued for trademark infringement and unfair competition.                           

The Baltimore Sun’s reported yesterday that, following an 8 day jury trial in the federal district court located in Baltimore, the jury returned a verdict for Ocean City’s Seacrets and awarded it $1 in compensatory damages, $265,000 in punitive damages and, most importantly, a permanent injunction that the Coryn Group could not use the trademark “Secrets” in the United States.  Recently, to avoid a re-trial on the punitive damages aspect of the verdict, Seacrets agreed to reduce the damages award to $50,000, but retained the permanent injunction against the Coryn Group. 

With this recent victory, Seacrets expansion is even more likely.  So, if you are not from the Mid-Atlantic area, watch out — a Seacrets may be coming soon to an area near you!

Scott Johnson Awarded Golden Formstone for Support of Arts in Maryland

Creative Alliance Gives Scott Golden Formstone

Mark Steiner awards Golden Formstone to E. Scott Johnson

Baltimore’s Patterson Theater was packed Saturday evening for the Creative Alliance’s Grand Marquee Ball. Costumed patrons jostled for position as the CA honored E.Scott Johnson and Terri Rubenstein for their unflagging support for the arts in Maryland.

Dressed as a mad hatter, Mark Steiner of WEAA bulleted Scott’s most recent arts accomplishments– reviving Maryland’s film incentive program which immediately netted three top shelf TV productions for Maryland including VEEP, House of Cards and Game Change, bringing back Maryland Volunteer Lawyers for the Arts, and leading the Maryland State Arts Council. Among Johnson’s many accomplishments mentioned by Steiner are his background as a session musician, losing gear to a sunken recording studio barge, and voting every year as a member of The Recording Academy. 


Welcome Home Maryland Filmmakers- Our Film Incentive Program is Back in Business

Julie Louis-Dreyfus Is Selina Meyer, Vice President of the United States

Our homegrown film industry was fleeing Maryland in 2011.  Skilled film workers needed film and television production jobs that had moved to states with generous film incentives. Conflicting priorities had reduced Maryland’s ability to offer incentives. What a difference a year makes

Last year Maryland enacted the Maryland Film Production Employment Act of 2011 to provide tax incentives for television and film companies who would produce films and television programs in Maryland. Almost immediately, world class projects, including HBO’s new series VEEP, and Netflix’s House of Cards, set up shop in Maryland. These productions (along with HBO’s Game Change, shot in Howard County), have brought Maryland’s skilled production crews back to Maryland after a long dry spell, and hundreds of Maryland businesses are reaping the benefits.  

According to DBED, the productions that chose Maryland in 2011 account for $185 Million in additional spending, creating 550 new jobs for film crews and actors. Because the program was so successful, the tax credits were quickly exhausted. A new bill, SB 1066, was proposed in Maryland’s General Assembly this Spring. It passed in the Senate unanimously, and is now in the House. Senate Bill 1066 would raise the annual cap on tax credits and extend the sunset, allowing Maryland to keep the outstanding television series it has attracted for subsequent seasons, while keeping the Maryland Film Office’s doors open to new film projects.