Monthly Archives: January 2014

Can the Estate of a Person Who is Deceased Enforce that Person’s Right of Publicity?

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 

May a Court Impose a Requirement that a Webpage about a Case be Posted in Order to Publicize a Settlement that is in the Public Interest?

Is it appropriate for a federal court to condition a settlement of an advertising fraud case upon the posting of a webpage publicizing the settlement? That issue was considered by the Court in FTC v. Circa, CIV. 11-2172 RMB/AMD, 2012 WL 3987610 (D.N.J. Sept. 11, 2012).

That case related to advertisements on the internet about the weight loss properties of acai berries. The advertisements were made to appear like newscasts and there were even fictional reporters and commentators discussing the acai berries weight loss properties.

The Federal Trade Commission instituted a proceeding alleging false advertising. It ultimately settled with Circa Direct providing for a permanent injunction and an $11.5 million payment that would be suspended if certain disclosure criteria were met.

The Court refused to approve the settlement because the public interest would not be served unless an additional term was added. That requirement was that the FTC would display a webpage giving the public the opportunity to assess the facts of the settlement and learn more about the deception involved.

© 2014 Nissenbaum Law Group, LLC

Do internships at profit-making industries need to be paid?

Do internships at profit-making industries need to be paid? That question is currently being considered by the United States Court of Appeals for the Second Circuit.

The matter is on appeal from the decision of the Federal District Court for the Southern District of New York in Glatt v. Fox Searchlight Pictures, Inc., 293 F.R.D. 516, 532 (S.D.N.Y. 2013). [READ CASE HERE]

The lower court in Glattruled that the unpaid interns involved in the movie “The Black Swan” should have received at least minimum wage. It based its decision in part upon the six factor test set forth by the Department of Labor See U.S. Dep’t of Labor Fact Sheet #71 (April 2010) (“DOL Intern Fact Sheet”). As the Court stated,

 [T]he Fact Sheet notes that “[t]he Supreme Court has held that the term `suffer or permit to work’ cannot be interpreted so as to make a person whose work serves only his or her own interest an employee of another who provides aid or instruction.” It enumerates six criteria for determining whether an internship may be unpaid:

1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
2. The internship experience is for the benefit of the intern;
3. The intern does not displace regular employees, but works under close supervision of existing staff;
4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.


Internships provide students or potential workers training, mentoring, network opportunities and experience. These reasons, along with the increasing competitiveness in the job market, are why interns are willing to work so hard for little or no pay. However, there is a line between that and a company hiring interns to essentially become unsalaried workers.

The Second Circuit should be rendering its decision later this year. 

© 2014 Nissenbaum Law Group, LLC

Do Workplace Discrimination Laws Apply to Women Who Work on the Internet?

Do women who earn their livelihood on the Internet – for example, bloggers or digital journalists – have the right to sue under the anti-discrimination laws if they are targets of conduct that impairs their ability to earn a living in that manner? This issue was recently discussed in an article by Amanda Hess on the Pacific Standard website entitled, “Why Women Aren’t Welcome on the Internet.”

          In the article, Ms. Hess discusses a potential trend in the law, the basic outline of which was discussed in a 2009 paper in the Boston University Law Review authored by Danielle Keats Citron. To the extent that women must use the Internet to earn a livelihood, if they are harassed or threatened because of their gender, that could be deemed workplace discrimination. The victim might even be able to calculate the lost income from being unable to utilize the Internet for viable employment. This would be analogous to workplace harassment under the current regime of anti-discrimination laws.

          It remains to be seen if this idea will gain traction in our jurisprudence. However, with the growing presence of anti-bullying policies in our schools and codes of conduct in a growing list of our institutions, this may represent a means of curbing Internet harassment in the future.

© 2014 Nissenbaum Law Group, LLC

Can You Be Sued For Your Social Media Posts?

What would you change about your Facebook, Twitter, Instagram or other social media sites if you knew you could be sued for using them? A case that could forever change the way we think about social media is currently before the Los Angeles Superior Court. It all started with the following tweet by Courtney Love. @CourtneyLoveUK: “@noozjunkie I was fucking devastated when Rhonda J Holmes Esq of san diego was bought off @fairnewsspears perhaps you can get a quote.”
Love’s former attorney, Rhonda J. Holmes, Esq. is suing for defamation based upon that tweet because it stated that Holmes was “bought off.”  This referred to the way Holmes’ handled her retention to pursue a fraud case against the executors of Love’s late husband, Kurt Cobain’s, estate. Love has raised the defense that she thought the tweet was only being sent to two people. She also has taken the position that it was not defamatory because it was an expression of opinion, not fact.
Generally, defamation has four key elements:
·         a false statement concerning another person or entity;
·         publication or communication of that statement to a third person;
·         intent:
o    malice (intent or reckless disregard) concerning the fact that the statement was untrue if it was about a public figure or
o    negligence by the party making the statement concerning the fact that the statement was untrue if it was about a non-public figure; and
·         harm caused to the person or entity who is the subject of the statement (unless a limited exception applies in which harm is presumed).
Defamation is a civil wrong that can manifest itself in the form of libel or slander. Libel is the written form and slander is the verbal form.  
Judge Michael Johnson ruled against Love and has sent the case to trial. If the jury finds Love guilty of defamation, it would be precedent-setting. The very nature of using Twitter is that the posts are abbreviated and immediate. Nevertheless, based upon this ruling the common law of defamation applies in those situations, as well as the more considered verbal or written statement. The take away is that people using social media should keep in mind that a tweet could result in a lawsuit. 

Clearly, the law is adapting to the new challenges of social media.  

© 2014 Nissenbaum Law Group, LLC

How Can An Expert’s Opinion Make or Break A Copyright Infringement Case?

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