Lowering the Bar

Internet Blamed for Latest Face-Stealing Incident

Just the other day I was writing (again) about the Case of the Taster's Choice Guy, a former model who posed for a picture in 1986, forgot about it, and sixteen years later happened to see his own face on a jar of Taster's Choice.  (I had assumed that one becomes the new Taster only after defeating the previous one in hand-to-hand combat, but it turns out the company just pulls a picture out of the files.)  Even as we await a decision in that case from the California Supreme Court, we learn that a Missouri family has also had its likenesses tortiously misappropriated, or whatever they call that in Missouri.

Reports this week said that Jeff and Danielle Smith, of St. Louis, had learned that their 2008 Christmas-card family photo was being displayed in the window of a grocery store in Prague.  Like the Taster, the Smiths learned this only by chance, after a college friend visiting Prague happened to see their life-size images enticing Czechs to buy groceries.  He took a picture of the picture and e-mailed it to the Smiths, ironically using the same Internet that had allowed the grocer to get their photo in the first place.

The shop owner, Mario Bertuccio, said he thought the picture was "computer-generated," but when he was told it was a picture of a real family, he said he "started taking steps to remove it."  (Step one: remove it.)  "We'll be happy to write an e-mail with our apology," he said, showing he would stop at nothing to make it up to the Smiths.  He also said he would send the Smiths a bottle of good wine, if they lived in the Czech Republic.  Too bad they don't.

It doesn't appear that the Smiths are too upset by the use of their photo, although their photographer is supposedly looking into the matter.  I suspect if they knew that the Taster had ended up (temporarily) with $15 million for the misuse of just one face, they might all get a little more interested.

Link: AP via Yahoo! News

UPDATE: Taster's Choice Case Goes to California Supreme Court

The California Supreme Court is hearing argument today in the case of Russell Christoff, a former model who, in 2002, happened to notice his own face staring back at him from the label of a Taster's Choice jar, and sued Nestle USA for using his image without permission.

Christoff had posed for some photos for the company sixteen years before, for limited use in Canada.  A Nestle employee apparently pulled that photo out of the archives in 1998 and, unbeknownst to Christoff, made him the new Taster.  The photo was used on labels in 21 countries in addition to the U.S., where Christoff later came face-to-face with himself.  After a face-to-face meeting with a lawyer, Christoff realized he might have a cause of action for a breach of his "right to publicity," as California calls a claim for using your likeness without permission.

My favorite fact about this case has always been that, when the company needed a Taster for Latin America, rather than hire a Latino they just Photoshopped the image they already had to give Christoff a darker complexion, and some sideburns.  Ole!

My main issue with the case is not so much the cause of action, since the company does appear to have acted without permission, but rather the damages.  A jury awarded Christoff $15 million for the unauthorized face appropriation, after an expert witness regaled it with tales of how important the iconic Taster was to Nestle's profits.  In any event, the appellate court reversed.  The question now before the state supreme court has to do with California's "single-publication" rule, a rule usually applied in defamation cases that requires claims to be made within two years of the first publication.  Since Christoff did not see himself on a jar until four years after his first appearance as The Taster, if this rule applied, his claim would be barred.

Anyway, I have reported on this case a couple of times already, so I won't belabor it here.  One of those reports was written when, by chance, I happened to be in the courtroom for an oral argument in a different case on the same day that the Second District Court of Appeal was taking up the Taster's Choice matter.  Among other things, I noted that the female justice on the panel remarked more than once that Mr. Christoff (who had brought his entire family) was still quite a handsome man.  I am confident she still voted to decide the case on the merits, however.

Link: Overlawyered

No Trademark for Chippendales' "Cuffs & Collar," Board Rules

The TTABlog, which covers actions by the Trademark Trial and Appeal Board, noted in March that that the TTAB had refused to allow registration of the "Cuffs & Collar" mark used by Chippendales.  The TTAB ruled that the mark was not inherently distinctive for "adult entertainment services, namely exotic dancing for women in the nature of live performances."

The mark (shown here as it appears in the application, not on stage), is apparently already registered based on a claim of acquired distinctiveness under Trademark Act Section 2(f).  The question here was whether the mark is in fact "inherently distinctive" so that it could be registered without reliance on Section 2(f).  I assume this makes some sort of difference under trademark law, but frankly I've already said more than I'm qualified to say about trademark law.

So, is it inherently distinctive?  The Examining Attorney, who had decided it was not, argued that "'uniforms' of the general type at issue here are neither unusual nor inherently distinctive," as they more or less involve not wearing very much:

The Examining Attorney [who had clearly done his research] points out that exotic dancers often start a show wearing some kind of outfits, for example, a stripper representing either a doctor wearing a stethoscope, or a construction worker wearing a utility belt, or a cowboy wearing chaps and a ten-gallon hat.

And not much else.  Agreeing with the examiner, the Board discounted the testimony of Dr. Rachel Shteir, a professor at DePaul University offered by Chippendales as an expert in draumaturgy:

In her declaration [the Board noted], she provides interesting history and psychosocial analysis in fields as diverse as the origins of the tuxedo, the significance of striptease, the women's liberation movement, the symbolic impact of costumes and uniforms, and other fields.  Unfortunately, we find that her expertise and analysis ultimately have little probative value in relation to the question at hand . . . .

In her analysis Dr. Shteir points to Mary Poppins as the quintessential “iconic character” and to her umbrella as an “intrinsic symbol” of that character. Dr. Shteir states, “Thus, just as the attributes of Mary Poppins are transferred to her umbrella, so, too, the fantasy attributes of the Chippendales dancer were transferred to the Cuffs and Collar outfit worn by the Chippendales dancers. . . ."  We fail to see how the comparison of Mary Poppins with the Chippendales supports applicant's position.

Despite this valiant attempt at a Mary Poppins/stripper analogy, the Board found that the mark was not inherently distinctive.

A dissenting opinion accepted most of Dr. Shteir's testimony, and would have found the clothing at issue "analogous to the garb of iconic characters, such as the blue tights and red cape of Superman, that taken together represents the power to leap tall buildings in a single bound."

Link: The TTABlog®
Link: In re Chippendales USA, Inc., No. 78666598 (Mar. 25, 2009).

Don Henley Sues Candidate to Stop Song Parodies

Again we learn the lesson that suing somebody who's saying something you don't like is guaranteed to get them more publicity (often now called the "Streisand Effect").   This time the teacher is Don Henley, a founding member of The Eagles, who is suing GOP Senate candidate Charles DeVore for writing new lyrics to a couple of his songs.  (The videos for these new versions were available on YouTube for a while but have been taken down because of the pending copyright claim.)

Henley filed suit last Friday in federal court, saying that DeVore had used his music without permission in two songs: "After the Hope of November is Gone," taken from "The Boys of Summer" and obviously referring to Barack Obama; and a new one about DeVore's opponent, Sen. Barbara Boxer, entitled "All She Wants to Do is Tax."

Henley (and his co-author, Mike Campbell) have probably given DeVore the high ground on this one, since the latter at least appears to have a sense of humor about things.  That's not a comment on the quality of the parodies, which are generally reported to be horrible, but at least he is making an effort.  Henley's spokesman, on the other hand, stated, "The infringers have vowed to continue exploiting this and other copyrighted works, as it suits them, to further their own ambitions and agenda. It was necessary to file a lawsuit to stop them."  Which is not funny at all.  DeVore responded on his website by saying he was filing a First Amendment counter-claim, and was "upping the ante on Mr. Henley's liberal goon tactics" by posting the lyrics of his new parody song.

It's good that DeVore has a sense of humor, both for general reasons and because his chances of unseating Boxer are approximately zero.

Link: CNN

"Octomom" Seeks Trademark

Nadya Suleman, also known as the "Octomom" for her amazing ability to give birth to eight offspring at once (or at least in rapid succession), has applied to trademark that nickname, according to reports on April 15.

If she ever considered trademarking "America's Sweetheart," that time has passed.  "The octuplets' birth on Jan 26 was heralded as a medical miracle," said the AP report, "but the public's fascination with Suleman quickly soured as details of her life emerged."  It turned out that Suleman, who is unemployed, already had six other children at home, all of whom were also conceived through in vitro fertilization, and all of whom, to the best of my knowledge, are also unemployed.  Suleman has seemed to expect public support to sustain her brood, but maybe that has not been going so well.

On April 10, Suleman filed two applications with the U.S. Patent and Trademark Office (Nos. 77711852 and 77711827), seeking to trademark the term "OctoMom" and saying she planned to use it on clothing, diapers, and most horrible of all, a television program.  (That application states that the programs would be in the field of "varity," which might be intended as "variety" or "verity," but is wrong either way.)  Suleman has denied that she is planning a "reality show," preferring instead to describe it as a series of TV "documentaries."

 

Suleman's attorney, Jeff Czech, said he and his client had been approached by people with Octomom-label ideas, resulting in the application.  "She doesn't particularly care for the name," he said, "but she thinks it's a good idea to protect it.  She has a sense of humor about it."

She may need that alleged sense of humor, since she is not the only one trying to trademark that name, nor is she even the first to apply for it.  A Texas company, "Super Happy Fun Fun, Inc." filed an application for the name about a month ago (No. 77689864) saying that the company planned to use it in connection with a video game it calls "Fertile Myrtle."  (On the website, it's described as "Fertile Myrtle (formerly Octomom).)"  The game, which is described as "hilarious" and "amusing" but sounds mostly horrible, involves pressing on Fertile Myrtle's belly to shoot "another adorable bundle of joy" into the arms of "Wacky Grandma."  Each baby earns welfare money, and timing the births so that they occur when paparazzi are in the room earns a cash bonus.  The game appears to be intended for the iPhone but, according to CNN, Apple "has been hesitant to approve the game" for iTunes.

Since Suleman actually has 14 children, she should really be called the "Tetradecamom," but I guess that is not quite as catchy.

Link: AP via Salon.com

Link: CNN

Epic Trademark Battle Erupts Between Makers of Competing Fart-Sound Software

I think my iPhone is a great invention, made even greater by the many software applications that you can download for it.  But as 95 percent of my cable channels demonstrate, even the greatest inventions can be put to utterly stupid uses.

Some of the best-selling iPhone apps fall into that category.  I am proud to say I own many apps, but not either "iFart Mobile" or "Pull My Finger," both of which, for just 99 cents, allow users to play a variety of simulated flatulence sounds.  iFart was produced by InfoMedia, Inc., based in Colorado and owned by a guy named Joel Comm; while Pull My Finger was created by Florida-based Air-O-Matic, Inc.  As recounted by a Fort Collins newspaper, the two companies quickly emerged as the titans of flatulence simulation: "[Air-O-Matic] held the early lead in sales of novelty applications that produce flatulence noises, but iFart surpassed Pull My Finger in popularity, in part because of the marketing that sparked the potential court battle."

The problematic marketing seems to have been a news release and YouTube video produced by Mr. Comm, in which he stated that his application "has people pulling each other's virtual fingers" and also used the exact phrase "pull my finger."

You see where this is going.

But let the story be told by Mr. Comm himself, in this dramatic and, apparently, utterly serious blog post recounting this clash of titans and the groundbreaking fart litigation it now hath spawned:

iFart Mobile takes Pull My Finger to court
Posted on February 13, 2009 02:38 PM by Joel Comm

My team and I came up with the idea for an iPhone fart application in summer of 2008. We knew it would be a hit. . . . We took great pride in developing iFart Mobile. It was more than another iPhone application. It was a true entertainment machine . . . .

I've got nothing against the people who make Pull My Finger. In my opinion, their app was inferior to ours. My team and I strongly believed that when people were given a choice between the two, iFart would be the clear winner. . . . 

As a very small part of my marketing I uploaded a video to YouTube called "iFart Mobile - Pull My Finger" intending to leverage the term commonly used to set off flatulence. I never imagined a common phrase like that would qualify for Federal trademark status, and I don't believe it does.  However, Air-O-Matic, the people that developed Pull My Finger, beg to differ. Since we did our first press release and linked the common phrase "pull my finger" to our app, they have been contacting us and asking us to stop. . . .

[Instead,] Air-O-Matic, Inc. is being served with a Complaint for Declaratory Judgment today.  I was willing to negotiate with them, but I will not be harrassed [sic] into paying them money just because our application was more popular and sold more units than theirs.  By rejecting my offer to discuss with them, we have incurred a loss of precious time and resources, not to mention legal fees. I intend to receive recompense.

You'd think the guy who came up with "iFart Mobile" would be able to come up with a better closing line than "I intend to receive recompense."

According to the complaint, as of the date of filing "the Apple iPhone App Store offered no fewer than 75 different flatulence simulation software applications from no fewer than 50 different developers."  And you thought America didn't make anything that the world wants to buy anymore.

Link: The Coloradoan

Sarkozy Wins One Euro in Voodoo-Doll Case; Doll To Remain on Sale

French president Nicolas Sarkozy has triumphed in his legal battle against a company that is marketing a book and voodoo doll using his image, reports said this week.

He has been awarded one euro.

In October, Sarkozy's lawyer sent a cease-and-desist letter asserting that Sarkozy had "exclusive and absolute rights over his own image" and that he would sue if the doll was not taken off the market.  It wasn't, and he did.  (This was apparently his second legal action involving the doll, which might explain what looks like swift action by French courts.)  Sarkozy's lawyer argued not only that the president owned the right to his image but also that the doll posed a threat because it might "provoke violence" against him.  I think the real threat might be to Sarkozy's tough-guy image, if he has to send his lawyer out to say he is afraid somebody might stick him with a pin.

On November 28, an appellate court ruled that K&B Editions had misappropriated Sarkozy's image, but also ruled that the requested ban would be "disproportionate" and would "compromise freedom of expression."  It also affirmed, or at least did not disturb, the lower court's ruling that the case came within what it called "the right to humor."  The court awarded Sarkozy one euro in nominal damages and about $2,000 in legal fees.  But it said the doll could continue to be sold.

The order also requires that the package carry a bright-red sticker reading "Judicial Injunction," and a warning that the book and doll constitute an attack on Sarkozy's dignity.  The required notice reads:

It was ruled that the encouragement of the reader to poke the doll that comes with the needles in the kit, an activity whose subtext is physical harm, even if it is symbolic, constitutes an attack on the dignity of the person of Mr. Sarkozy.

Certainly the court could not have been thinking that its ruling, sticker and warning label would add to the notoriety of the product, which is already well-known due to the publicity Sarkozy himself ensured with his lawsuit.  But that has been the effect.  The product has jumped to the top of Amazon.com's best-seller list (in France).  K&B Editions said that its first 20,000 dolls sold out in three weeks, and that another 20,000 will be ready by December, complete with sticker and label.

Still, Sarkozy's lawyer said that his client was satisfied with the ruling because it had affirmed his right to control his image, which seems a little ironic given that the case has also ensured that tens of thousands of people will be poking that image for months to come.

Link: International Herald Tribune

Taco Bell Lawyers Disrespectin' 50 Cent

Lawyers for Taco Bell are accusing rapper 50 Cent of using his trademark-infringement lawsuit against the company for ulterior motives.

Cent filed the lawsuit back in July after the company sent out a letter suggesting that it would donate $10,000 to the charity of his choice if he would change his name for one day to "79 Cent," "89 Cent," or possibly "99 Cent."  The proposed names were chosen to publicize Taco Bell's value menu items.  Cent sued, claiming that the stunt was an unauthorized use of his trademarked rap appellation.

To the contrary, says Taco Bell, it was simply making a offer that he was free to accept or reject.  Taco Bell's counsel fired back this week by accusing Cent of trying to "burnish his gangsta rapper persona by distorting beyond all recognition a bona fide, good faith offer."

Good point.  Because nothing would burnish one's gangsta rapper persona more than using a federal trademark lawsuit to distort beyond all recognition a bona fide, good faith offer.  What next, a declaratory relief action over somebody violating an easement?

Cent said he stood by his earlier statement that Taco Bell would find that if one messes with the bull, one will ultimately receive the horns.

Link: AP via FindLaw.com

Monty Python Fights Piracy With New YouTube Clips

In a great new development, which they say is aimed at defeating piracy, ending the spate of "crap quality videos" people are posting on YouTube, and selling more stuff, Monty Python has established its own YouTube channel featuring videos of non-crap quality.  Here's what they, or possibly their spokespeople, had to say about it:

For 3 years you YouTubers have been ripping us off, taking tens of thousands of our videos and putting them on YouTube. Now the tables are turned. It's time for us to take matters into our own hands.

We know who you are, we know where you live and we could come after you in ways too horrible to tell. But being the extraordinarily nice chaps we are, we've figured a better way to get our own back: We've launched our own Monty Python channel on YouTube.

No more of those crap quality videos you've been posting. We're giving you the real thing - HQ videos delivered straight from our vault.

What's more, we're taking our most viewed clips and uploading brand new HQ versions. And what's even more, we're letting you see absolutely everything for free. So there!

But we want something in return.

None of your driveling, mindless comments. Instead, we want you to click on the links, buy our movies & TV shows and soften our pain and disgust at being ripped off all these years.

Most popular right off the bat, unsurprisingly, is the encounter between King Arthur and the invincible Black Knight.  But in keeping with the legal theme here (not that I couldn't come up with a way to fit that one in), I'm going to post the also-immortal "Argument Clinic":

I listen to this (among other Python bits) regularly on my iPod and it never fails to cheer me up.  Having the non-crap videos available is even better.

Link: Monty Python Channel on YouTube

Link: Wired.com

French President Threatens to Sue Voodoo-Doll Maker

French President Nicolas Sarkozy, shown here getting angry at some Europeans about something, has threatened to sue a company that has been marketing a Sarkozy voodoo doll.

The doll bears a number of colorful quotes from the outspoken statesman (such as "Get lost, you pathetic ______," which he allegedly said last year to someone who refused to shake his hand) and comes with a manual telling buyers to stick pins in the quotes.  An unamused Sarkozy directed his lawyer to send out a cease-and-desist letter, which was published in Le Monde yesterday.

"Nicolas Sarkozy has instructed me to remind you that, whatever his status and fame, he has exclusive and absolute rights over his own image," said the letter, in a statement that I am pretty sure is false, at least taken literally, although I am having the research department check on the scope of the "fair use" doctrine in the EC.  The lawyer said that if the company did not recall the 20,000 dolls it has issued, Sarkozy would sue them.

The company, which is also marketing a doll of Segolene Royal, Sarkozy's rival in the last election, has called Sarkozy's reaction "totally disproportionate."  I agree -- instead he should immediately make a voodoo doll representing the company and go on TV to stick pins in it, which would have the twin advantages of being a lot cheaper than paying his lawyer and also making him look like less of a dick.

This is not the first time Sarkozy has sued someone while in office -- just last week he sued a former intelligence officer for libel and invasion of privacy after parts of the officer's diaries were published -- but it is the only example I can find of any world leader threatening a voodoo-doll manufacturer.

Link: BBC News