Marilyn Monroe passed away in 1962. Her estate has zealously enforced her trademark and other intellectual property rights from those who would infringe upon it. However, there are other common law rights that might apply, such as the right of publicity, which would likewise bar someone from using her name and likeness. The question that was before the Ninth Circuit Federal Court of Appeals in August of 2012 was whether that right of publicity could be applied in Marilyn Monroe’s case. Archives v. Monroe, 692 F.3d 983, (9thCir. 2012).
The twist in that case was that the Court had to determine whether Monroe was a resident of New York or California at the time that she passed away. If she had been a resident of New York, she would have no right of publicity since that state does not provide for such a right after death. If she were a resident of California at the time that she passed away, she would have such a right since California amended its law to provide for such Monroe’s estate in particular to be able to avail itself of that protection.
The Court determined that Monroe did not have such a right since she was a resident of New York at the time that she was deceased. Although she had moved to California and committed suicide there the estate had taken the position in previous cases that she was a resident of New York. Therefore under a theory of judicial estoppel, the Court found the estate was not allowed to make a contrary assertion in this later suit just because it was more advantageous.
© 2014 Nissenbaum Law Group, LLC
How can a party determine if your expert’s opinion will adequately support your position? In the recent case of Dash v. Mayweather, 731 F.3d 303 (4th Cir. 2013), [READ CASE HERE] the Court addressed this issue when it considered the adequacy of an expert’s opinion on damages.
In that case, Anthony Lawrence Dash filed a lawsuit against Floyd Mayweather and the World Wrestling Entertainment (WWE) claiming that Mayweather and WWE had committed copyright infringement after using Dash’s beat track without his permission. All parties agreed that the use of his song did not increase the revenue after it was played at Wrestlemania XXIV and the August 24, 2009 TV show, RAW. Dash v. Mayweather, 731 F.3d 303, 308 (4th Cir. 2013). In light of that, the parties filed a joint motion requesting that the Court make a determination with respect to damages.
Dash used an expert who determined that his damages were worth over one million dollars. The Court dismissed Dash’s case because it found the expert’s analysis to be too speculative. In addition, the Court did not agree with the expert’s use of other artists, such as Fuel, Red Hot Chili Peppers and Snoop Dogg, who have licenses with WWE for the valuation of the license fees in Dash’s case. The Court said that Dash needed to compare himself to other comparable artists. Since he had nothing to substantiate that there were comparable artists to which he could be compared, his claim failed. He never made a profit from the track used; he could not use establish the value of his license fees.
Section 504(b) of the Copyright Act [READ STATURE HERE] allows a copyright owner to obtain the owner’s actual damages and the infringer’s profits attributable to the infringed work. However, it is necessary to offer sufficient evidence to meet the standard of proof. The copyright owner has to show a reasonable nexus between the infringement and the defendant’s attributable profits.
On this basis, the DashCourt ruled that he needed to show more than just the use of the copyrighted material. Since he could not demonstrate damages in a manner that satisfied his burden of proof, his claim was not successful.
© 2014 Nissenbaum Law Group, LLC