Protecting The Brand: Katherine Heigl Sues Duane Reade To Protect Her Publicity Rights

Katherine Heigl has never been a lovable celebrity. Throughout her career, she's bad-mouthed her projects and coworkers to such a degree that Hollywood and the public have largely turned on her. Some have even dubbed her "Hollywood's Most Hated Actress." Lately, it appears she's taken a page out of Sheryl Sandberg's playbook and is leaning in to that title; last week she sued NY-based drugstore chain Duane Reade for $6 million after they tweeted a picture of her leaving one of their stores after shopping there. If she wins, she plans to donate that money to charity... her own charity.

To be sure, this lawsuit isn't going to win her any fans. But then it's not really designed to; it's designed to protect her publicity rights. And using that as a guidepost, Ms. Heigl may actually have a point. Here's the tweet in question:

Heigl Tweet

Heigl's complaint alleges violations of the Lanham Act (the law governing trademarks) as well as New York Civil Rights Laws Sections 50 and 51 (which govern privacy). I'm not going to address the trademark issue here because she would have to prove that Duane Reade's use of her picture would likely confuse the public into assuming she was affiliated with Duane Reade. I just don't think the facts are compelling enough to make that claim (the average person will not conflate shopping at a store with endorsement of it). As I see it, this case is more likely to turn on the privacy issue anyhow.

Section 50 of the NY Civil Statutes says that:

A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.

That kind of says it all, doesn't it? The image of a person (famous or not) cannot be used in advertising without their consent - which Ms. Heigl obviously did not give. In common law, this would be referred to as "appropriation of likeness" which is considered one of four privacy rights. So does the tweet count as advertising? Based on the nature of the tweet and the wording, I think a convincing argument can be made. After all, why would Duane Reade tweet that picture if there wasn't a business motive behind it? It's not like the picture was taken by an awe-struck fan... the picture was taken by a paparazzo which was then used by a corporation whose message on Twitter and Facebook was clearly that "Ms. Heigl is a patron of our stores."

Even still, this infraction seems relatively harmless... certainly not worthy of $6 million of Heigl's wrath. And it does raise some questions about the nature of publicity rights as used by celebrities. On the one hand, social media has made it difficult for people to know where the line is between advertising and simply pointing out "here's a celebrity!" While I think the tweet counts as advertising, I could be convinced otherwise with some clever lawyering. There are also First Amendment questions at stake - can a corporation never tweet a picture of a famous patron? Is such a tweet automatically advertising by its nature? And would banning those types of tweets violate the right to free speech? On the other hand, celebrities rely on their images to get work, and having that image appropriated for a use they never approved could result in a loss of work or even ruin business relationships (e.g. what if Ms. Heigl just worked out a deal to be a spokesperson for CVS? The tweet of her shopping at a competing drugstore could destroy that deal).

I know, I know. It's hard to care about how Duane Reade's tweet may negatively impact Ms. Heigl. That's the level of damage she's done to her personal brand. And this lawsuit, however justified, doesn't do anything to help her image. For her sake, I hope she realizes that legal protection of a brand is not the same thing as public protection. The former is fine, but if she wants to continue acting, it will be crucial for her to work on the latter.

Here's My Take On the Tarantino v. Gawker Lawsuit Battle

tarantino-xx-blu-ray-posterA few people have asked my opinion on the Quentin Tarantino v. Gawker lawsuit and while I've been happy to lament it with friends and family, I hesitated to weigh in here because I wanted some time to get my thoughts in order. The situation, while comical, says something deeply unflattering about both Tarantino and Gawker, and it brings to light a previously unknown area of law that could have an impact that reverberates through the entertainment and media spheres for a long time. That time to think was also necessary to separate the wheat from the chaff - people have largely chosen sides based on knee-jerk reaction, rather than a thoughtful analysis of the facts (if you like Tarantino's films, Gawker is obviously the devil. If you dislike Tarantino's films, then he's a cry baby who may have instigated this whole fight). Now that I've had some time to process the situation, here's my take:

Whoever wins, we all lose.

For those not in the know, Tarantino sent an early draft of his new script, The Hateful Eight, to several actors he was considering for roles in the film. One of those actors (most likely Bruce Dern of Nebraska fame) gave the script to his agent. Somehow, the script leaked out of the agency and wound up on a website where it could be downloaded and shared by anyone. Angered by the leak, Tarantino spoke to Deadline to discuss how he was so pissed at the situation, he shelved the script completely and would make another film instead. A few days later, Gawker printed a story with the headline Here is the Leaked Quentin Tarantino Hateful Eight Script which contained a link to anonfiles, the website that was hosting the leaked script. Tarantino lost his shit and sued Gawker, claiming that it was liable for "contributory copyright infringement." You can find the complaint here, and you can read Gawker's response to the suit here.

Unlike traditional copyright infringement, contributory copyright infringement is a really muddy area of law, with very little case-law and precedent to accurately predict how a court would rule on this issue. Contributory infringement occurs when someone knowingly causes, induces, or materially contributes to copyright infringement. In this case, Gawker didn't host the script on its own servers, so it can't be liable for direct infringement. But because it linked to anonfiles and essentially told its audience, "here's where you can get it," Tarantino argues that it knowingly caused the infringement to be much worse than it otherwise would have been.

So did Gawker infringe Tarantino's script through contribution? That determination will rest on a lot of factors such as: the intent of the article's author and publisher, the likelihood of readers clicking through to the script, and the actual amount of traffic Gawker is responsible for sending to anonfiles. I honestly don't know how this will shake out, but here's what I do know... whichever way a court rules in this case, it sets a dangerous precedent for artists and web masters alike.

If Tarantino loses, it softens the rights of individual artists to protect their work from prying eyes. It allows websites to purposely drive traffic towards wrongfully obtained work without taking any of the blame for making the infringement worse. On the flip side, if Gawker loses, website owners will become responsible for content they don't host. No matter how you cut it, it creates a slippery slope that could negatively impact a lot of people, especially when you consider the fact that Tarantino filed his complaint in a California Federal District Court. Like New York, the California federal courts are extremely influential, and case-law coming out of those courts can set the agenda for the rest of the country.

To make matters worse, neither Tarantino nor Gawker have particularly good arguments. In the past, Tarantino has openly praised the leaking of his scripts, and his bluster is what made this story news to begin with (if he had handled it privately or through his lawyers, the script might never have leaked as quickly and as widely as it did). Gawker argues that because it's a news website, posting the link was newsworthy and thus, its actions are protected by fair use. But would a real news agency like CNN or BBC post the link? I doubt it. I also doubt that posting a link to an infringed script was the kind of thing the writers of our copyright laws envisioned when they came up with fair use.

I pray that the parties settle before getting to trial because this is not the case to determine such a deeply important issue.

When Rowling Met Galbraith: How An English Lawyer Broke The One Unbreakable Rule All Lawyers Must Follow

jk-rowling-cuckoos-calling-review

This past April, a former military police officer named Robert Galbraith released his debut novel, The Cuckoo's Calling to stellar reviews but terrible sales, selling only 1500 copies. As sales floundered, a British lawyer named Chris Gossage confided to his friend Judith Callegari that Galbraith wasn't a real person, but was in fact the pseudonym for J.K. Rowling, the most famous author in the world. Callegari then did what most of us would do when handed such a world-shattering piece of gossip - she blabbed to anyone who would listen, including a reporter. With the cat out of the bag, sales of Cuckoo skyrocketed to #1 on Amazon.

It's not hard to see why Rowling would do this. As wealthy and successful as Harry Potter made her, the pressure to rebel against typecasting must have been overwhelming. Following the release of Deathly Hallows in 2007, she sought to distance herself from the world of magic by writing a novel for an adult audience. The result was The Casual Vacancy, a thriller which sold like gangbusters, but was panned by critics. I imagine she took a great deal of satisfaction knowing that while Cuckoo wasn't popular when everyone thought Galbraith had written it (it's not like she needed the money), it found love from the very people who felt she could never write a book that wasn't aimed at children. She admitted as much on her website, saying that it was nice to be able to publish "without hype or expectation." So while Rowling was displeased with her identity being leaked, she had still proven her point.

Not everything worked out so well for Gossage though, a partner at the firm that represented Rowling. She sued the firm because he breached the inherent confidence present in the attorney-client relationship (which usually applies to the whole firm even if Gossage himself wasn't representing Rowling).  Even worse, he was just slapped with a fine by the Solicitor's Regulation Authority (the organization that oversees attorney ethics in England) for violating a client's trust.

Regardless of which side of the pond you live on, attorney client confidentiality is a pretty big deal. In most cases, by the time a client seeks the aid of a lawyer, a crisis has happened and the client is often in the midst of a deep personal anxiety. Not only are they emotionally fragile, they are dealing with issues that might require the divulging of sensitive information. Anything from sexual abuse, to financial indebtiture, to murder is on the table, and needs to be discussed frankly in an open and safe environment. If the client can't feel comfortable discussing these issues, then the lawyer can't give the best legal counsel he or she has sworn to provide.

That trust is so important that every country with a judicial system has a rule protecting attorney-client confidentiality. In Massachusetts, where I practice, Rule 1.6 of the Rules of Professional Conduct states that:

A lawyer shall not reveal confidential information relating to representation of a client unless the client consents after consultation.

Without the client's express consent, a lawyer can only reveal confidential information in certain limited circumstances:

  1. If it would prevent someone from sustaining substantial bodily harm or death,
  2. To obtain legal advice about ethics,
  3. To defend himself against allegations of legal misconduct, or
  4. To comply with another law or court order.

All 50 states have a rule like this. Depending on the severity of the violation, a lawyer can be punished with fines (as Gossage was), disbarment, or even jail time. Most lawyers take client confidentiality very seriously, not just out of fear of punishment by the local examining board, but because it's the right thing to do.

Every American law student knows the tale of Frank Armani and Francis Belge, two American lawyers who represented Robert Garrow, who was accused of murdering Philip Domblewski in 1973 while Domblewski was camping in the Adirondacks with friends. During a consultation with Armani and Belge, Garrow not only admitted to killing Domblewski, he admitted to murdering and raping several other people. Garrow told them where he dumped the bodies, and his story was confirmed when Armani and Belge personally went to those sites to investigate and photograph the remains.

But because Garrow was their client, Armani and Belge couldn't tell the family members of the deceased where the bodies were.  In fact, Armani and Belge kept silent for nearly a year, despite intense public pressure (they finally disclosed what Garrow had told them after Garrow admitted to the murders during trial). Because they had taken an oath to protect their clients' confidences (no matter how reprehensible), Armani and Belge were not able to discuss what Garrow told them without incurring potential legal repercussions.

In the grand scheme of things, the £1000 (about $1600) Gossage was fined amounts to little more than a slap on the wrist. Gossage claims that he himself is a victim of betrayed confidence, believing that Callegari would keep the secret. Regardless of his excuses, Gossage just learned a valuable lesson about talking out of school, especially when the client is as well-known as Rowling. He should count his lucky stars that she's a world-famous billionaire author, and not a psychotic rapist killer like Garrow.

Anyone Who Argues Against Net Neutrality Is A Greedy Scumbag Who Wants To Take Your Money

net-neutrality-monopoly

I've always wanted to write a salacious hit-bait headline like that. Hopefully it worked and you're reading this. So now that I've gotten your attention, here's what I really want to say... anyone who argues against net neutrality is a greedy scumbag who wants to take your money.

This week, the D.C. Circuit Court of Appeals struck down the Federal Communication Commission’s (FCC) rule protecting net neutrality. And that’s unfortunate because net neutrality is a wonderful thing. For those who don’t know, net neutrality is the principle that all internet traffic should receive free and equal service, regardless of source or content. For the past decade, this is how the internet has functioned. It didn't matter if you were reading an article on a news website, sharing your vacation pics on Picasa, or streaming Raging Bull on Netflix, you could access any content you wanted and it was all treated the same.

Net neutrality is what allowed Google, Facebook, Netflix, and Amazon to get a foothold in the marketplace and become the juggernauts they are today. Realizing the goldmine to be had by controlling access to the internet, the telecoms started implementing policies to do just that. So in 2010, the FCC passed an Open Internet Order allowing it to regulate internet companies the same way it regulates telecoms and cable companies. The goal was to keep access to the ENTIRE internet equal and open to all.

Why Should You Care?

Unfortunately, Verizon hated this, so it sued the FCC, claiming that its Open Internet Order was an overreach of federal power. The D.C. court agreed. That means it’s now legal for internet providers to:

  • Block any website they want for any reason,
  • Charge ISPs more money to host streaming content, meaning your Netflix subscription is about to increase by orders of magnitude,
  • Cap and throttle internet usage with impunity, charging higher fees for better broadband access.

So if Time Warner wanted, it could now block any website it's not affiliated with. Prefer to get your news from NBC, Fox, or NPR? Too bad. Time Warner owns CNN so that’s the only news outlet you might be able to get. Even if it decides not to block those websites outright, it can charge ISPs higher fees to carry those websites, or throttle the bandwidth given to those websites making them load much slower. HuffingtonPost has a pretty solid rundown about how the internet might look in the absence of net neutrality.

Ultimately, the death of net neutrality will mean that a few giant companies can discriminate against sites and content they don't like and funnel your internet experience in ways they deem appropriate (during oral arguments, Verizon’s attorney admitted they would be pursuing different economic schemes if not for the Open Internet Order). With the internet providers controlling content, fewer and fewer startups will be able to get a foothold in the market, significantly affecting innovation.

Net neutrality opponents have argued that so much traffic comes from "big video sites such as Netflix and YouTube, [that it] clogs up the system and imposes delays on everyone else. These companies should be paying their fair share." Which sounds eminently reasonable until you realize that Verizon made $2.23 billion in the third quarter of 2013 alone, so it's not exactly hurting for cash.

Pro-neutrality advocates have argued that there's plenty of bandwidth to go around and charging extra because of the nature of the content is "naked corporate greed." I agree, and so do Facebook, Google, Yahoo, Amazon, and Netflix, who favor net neutrality and stand to lose a lot of money if the telecoms get their wish.

How This Affects Artists

The loss of net neutrality is bad for everyone, but it’s especially bad for artists because art is frequently visual in nature, and unlike text, visual media requires a lot of bandwidth. If I’m a filmmaker and I put my latest film on YouTube, how likely are you to watch if it takes 10 minutes to load because you’re on a lower-tiered broadband plan which doesn’t include video streaming? If I write a song that contains explicit sexual content, how will I get anyone to listen if Comcast starts arbitrarily banning content it deems to be pornographic in nature?

The end of net neutrality becomes another way for large corporations to trample the rights of individual artists, something I’ve railed about on this site for a while now. Limiting the artist’s ability to display and promote his or her work not only affects the individual’s ability to make a living, but it affects society at large because it stifles creativity and limits innovation.

Why There’s Still Hope

The Atlantic's Kevin Werbach offers some credible arguments that, despite the ruling, there’s some hope for the future. First, even though the D.C. court’s ruling now eliminate the only rule preserving net neutrality, no rules even existed before 2010. And it’s not like we were plunged into an internet-restricted hellscape during that time. In fact, immediately following the court’s ruling, Verizon announced that there would be no changes to its services for customers.

Second, the court made it’s decision on a fairly limited technicality and gave the FCC a roadmap for fixing this whole mess. In a nutshell, if the FCC placed internet services into the same category as it did the telecom giants, it would be able to reinstate the Open Internet Order in some form. The fact that internet providers are not classified as "common carriers" like the telecoms is the main reason the rule was invalidated by the court. And throughout the opinion, the court repeatedly references the FCC’s “choice” or “decision” to classify internet providers differently than telecoms.

Given the Commission’s still-binding decision to classify broadband providers not as providers of “telecommunications services” but instead as providers of “information services,” see supra at 9–10, such treatment would run afoul of section 153(51): “A telecommunications carrier shall be treated as a common carrier under this [Act] only to the extent that it is engaged in providing telecommunications services.”

Granted, reclassifying broadband providers as common carriers would require some legal jiu-jitsu by the FCC, and it’s unclear to me that the law would easily permit FCC Chairman Tom Wheeler to make that choice. Even if he could, he might not want to since it would probably result in a  political battle with congressional Republicans, who, it should be noted, absolutely hate net neutrality. Right now, the FCC is more likely to appeal the court’s ruling than reclassify. But reading the decision it became clear to me that the court was telling the FCC how to regain the upper hand. The decision repeatedly slaps down Verizon's claims and states explicitly that it “think[s] it quite reasonable to believe that Congress contemplated that the Commission would regulate [broadband internet service providers].”

Probably the best way to resolve the matter is to get Congress to pass pro-net neutrality legislation, which is obviously easier said than done. Luckily, there’s a lot of money in this fight and for once, it’s not a case of the big guys (i.e. big corporations) lobbying against the little guys (i.e. you). Sure, Verizon, Comcast, and Time Warner have a lot of money to lobby Congress. But you know who else has a lot of money to lobby Congress? Facebook. Google. Amazon. Yahoo. And they fucking love net neutrality.