What’s in a name? – Two timely questions of identity and personality rights

July 6, 2011

For the past few weeks, my mind has been trained on the intersection between personality/publicity rights and trademark rights.  Initially I was inspired by events in my own life, but headlines have fueled further internal debate on the subject.  Currently I’m focused on two interesting and completely unrelated cases regarding the names of individuals: DJ Paulie vs. Pauly D and Rick Santorum vs. Google.  Each poses a compelling question.

In the case of Pauly D, I am left asking myself, “Does an individual own an unabridged right to use their birth name or a obvious derivative of their name in business?”  Currently Paul Lis aka DJ Paulie asserts that Paul “Pauly D” DelVechhio of the Jersey Shore is infringing upon his registered trademark and causing him to lose work.  Additionally, last year when Pauly D sought to trademark his name, the USPTO denied Mr. DelVecchio for a likelihood of confusion.  Nothing outright prevents the registration of similar or identical marks so long as it can be show that the two marks won’t create a likelihood of confusion.  Also, DJ Paulie doesn’t seem to assert that Pauly D is creating any level of confusion, but he does claim that the Jersey Shore star is diminishing the fame of his mark.

It is my personal opinion that the likelihood of confusion between Pauly D and DJ Paulie is minimal.  The DuPont Factors identify multiple criteria that must be examined in order to find a likelihood of confusion beyond name similarity including the fame of the prior mark, products displaying the mark, and the condition under which goods baring the mark are purchased.  DJ Paulie appears to be a cookie-cutter internet radio station with a moderate sized social media reach.  Whereas, Paul DelVecchio has created an enormous brand surrounding his nickname due to his reality TV appearances.  Ultimately, I believe this case hinges on consumer sophistication.  With the boom of social media, listeners have access to more music and entertainment than ever before in the history of man, and with that, comes a heightened sense of individuality of taste.  Whatever you want to hear can be found almost in an instant, so today’s listeners aren’t prone to making impulse purchases regarding music as they once were.  With that being said, I don’t think anyone would confuse a middle-aged internet radio DJ with a young reality TV celebrity that happens to deejay in clubs for additional income.

The second question is what right does an individual like Rick Santorum hold in fighting a Google bomb.  Eight years ago, Rick Santorum infuriated an individual with a negative comment towards homosexuality, and that internet user set out on a campaign to smear Santorum’s name by having it associated with an obscene situation.  Through an understanding of search engine optimization said user succeeded in making his new definition the top result when anyone Googled “Rick Santorum”.  There is very little you can say to dispute the internet as the primary disseminator of information in the modern world, and with Google being the leading search engine, this must debase the value of his name.

Because Rick Santorum is a public figure, he’s afforded very little protection in the way of personality rights, libel, and intentional infliction of emotional distress as counterbalances by First Amendment rights.  On the other hand, if Rick Santorum were a business or celebrity, I think he would have a potential claim under the personality rights of Indiana.  Indiana requires that a portion of a party’s personality be misappropriate in a commercial use.  To me, name is obviously at the core of personality.  If a non-political blogger chose to Google bomb an individual as was done to Rick Santorum, I think most attorneys could craft an argument that the Google bomb was commercial in nature and meant to bolster the career of the blogger.  Although I believe Rick Santorum has little recourse available to him, I think the situation poses an interesting question.

Per usual, this isn’t meant to be legal advice.  These are just my mental musings on a reoccurring subject.


Viacom Actively Infringed Upon Itself on YouTube

May 22, 2010

As the war between Viacom and Google heats up, this has become one of my favorite news bits from the past couple of months.

As court documents from the feud became public, it was discovered that Google alleges that some of the challenged content was intentionally posted on Youtube by Viacom. This presents an interesting defense.  In an economic environment where viral marketing is the most effective, Viacom has a multitude of reasons to infringe upon their own rights.  If they chose to do so, does that constitute a waiver of their copyrights?

In the world of Web 2.0, viral marketing has become and essential component of nearly every business.  Social media has made the consumer tremendously stronger when it comes to promoting any product or service.  Having a user create a Facebook campaign for you seems to be even more effective than a Super Bowl Commercial (the Betty White SNL campaign).  In order to appear as if a product has grassroots support, companies will use secondary companies to post content from IP addresses not associated with either company.  Ever notice how the first few episodes of every new show get “leaked”?

The concept of viral marketing poses very few IP questions to the average company as they have little content to protect.  Entertainment companies like Viacom, however, have a lot to lose and gain from viral marketing and user created content.  How does a company go about exploiting the new technology while still protecting their content?  And if they chose to promote the infringement of their content via specific outlet, does that create a blanket waiver of the infringement of their content on that outlet?

The first lesson that I feel like needs to be learned by most businesses is that social media is leveling the playing field.  We all have a link to mass media and a wide base of consumers.  In order to stay relevant, traditional companies are going to have to make use of the new medium.

Secondly, copyright laws in this country need to be overhauled to handle this new level of mass communication.  If web users are going to drive your sales, then you need to make concessions to said users when it comes to enforcing your intellectual properties.

Full story @ USA Today

Happy 300th Birthday Copyright

April 11, 2010

Three centuries ago, the civilized world embarked upon a journey of unforeseeable repercussions that has essentially made most common people criminals.  On April 10th, 1710, the United Kingdom enacted the first statute to ever grant individuals a right in the copies of their printed works.  Entitled the Statute of Anne, the law granted book printers an initial 14 years of protection for their efforts with the option for an extension of 14 years.  In the United States, that term of protection has been expanded to 70 years.

Although copyright has developed into an economic right, it was originally created in order to promote learning.  Not only did the Statute of Anne grant rights to the publisher for protect their works, it also commanded publishers to deposit copies of the book in the King’s Library as well as the libraries of Oxford and Cambridge.  Three centuries ago, no that many books existed, and very few common people had access to them.  With the passage of Statute of Anne, anyone that could study at Oxford or Cambridge had access to every printed work of the land.

Flash-forward to the present, and the world’s largest library, Google Books, is involved in a massive lawsuit with publishers and authors around the world.  For the past few years, Google has been scanning and recording every book in a searchable database.  For many of the books logged, Google has not bothered acquiring permission from the copyright holders.  As any researcher can tell you, the service is invaluable.  With the same speed that Google searches the Internet, Google Books has the ability to return corresponding written works relevant to a user’s search.

Comparing the Statute of Anne to the current legal battle that embroils Google’s Books project, it immediately becomes apparent how much copyright law has become twisted.  Copyright protection was originally granted to publishers as trade to encourage publishers to deposit copies of their works in libraries.  Now, copyright is granted immediately upon creation before the author shares the work with anyone.  An author receives just as much protection for hoarding their works as much as they would for sharing.  This to me is the most compelling argument for a complete overhaul of the worldwide copyright system.

Full story.

Saigon Inks Futuristic Deal with Amalgam Digital

March 28, 2009


Having learned his lesson after the Atlantic fiasco that has prevented Sai’s release for the past 4 years, Saigon has signed a deal with Amalgam Digital that I believe will be model for independent artists in the future.  Instead of signing with a traditional deal with an indie label, Saigon’s deal simply grants Amalgam the right to distribute his tunes to various digital retailers.  As Sai put it in a recent interview, he is nobody’s artist and controls his own career at this point.  Due to that level of autonomy and the lack of physical CD sales in recent years, I believe many artists are going to be looking at going straight to digital distribution.

The deal is being kicked off with the release of Saigon and Statik Selektah’s album All in a Days Work.   Amalgam is not promoting the album and thus has a much lower overhead, so Saigon had much more artistic freedom in the creation of this album.  It’s arguable that that All in a Day’s Work is rawest material Saigon has made since his Yardfather release.

For artists that aren’t doing huge numbers and can pack stadiums for shows, 360 deals like Jay-Z’s won’t be available, and the ability to control their own content, promotion, and release schedule will be the most effective means to get their music in the hands of listeners while deriving revenue.  Essentially, by going to directly to a digital distributor, the artist is cutting out the record label, another middle man.  The artist will be allowed to retain a higher percentage of their publishing rights and sales profits.  Through the efforts of business savvy artists or artists with effective management teams, much of the bloat in the music industry could be cut away.

As CD sales continue to plummet, the music industry can no longer afford the many tiers of administration it has established over the past century.  When consumers were forced to pay top dollar for recordings of their artists, the industry could afford to have huge A&R and promo teams that orchestrated the release of thousands of albums a year, but when the top selling albums of the year barely go platinum in a week, the industry can no longer afford to pay everyone’s salary.  Cutting out independent record labels or essentially forcing each artist to become their own indie label removes a lot of the gratuitous excess and places a high percentage of the sales revenue directly in the artist’s pocket.

Full story @ Hip Hop DX

RIAA Halts Prosecution of Individual Pirates

December 27, 2008


In a move that generally shocks me, the RIAA has decided to quit filing suit against individual MP3 downloaders, but this shift in policy is not a sign of surrender.  The RIAA has shifted strategies to notifying ISPs of offenders and potentially having them blacklisted from the internet.  

Under the new policy, if an offender is caught downloading copyrighted content illegally three times, the RIAA will request that offenders internet access be revoked.  This could create a whole class of citizens that have been denied access to the fastest growing communications tool humanity has ever seen without so much as a single government hearing.  Even an administrative agency would have to hold a hearing to determine the presence of an infringement.

As telecoms continue to bundle packages that include internet, TV, and voice, would they be forced to revoke all services upon the third infringement?

Full article @ Wired