One copyright lawsuit says the answer is “no.”

In a case against Take Two Interactive, the maker of the popular “NBA 2K” video game franchise, Solid Oak Sketches LLC argues LeBron James can license his likeness, but cannot license images of his tattoos due to copyright law.

Solid Oak claims it owns the images of multiple NBA players’ tattoos including LeBron James, Eric Bledsoe, and retired player Kenyon Martin, in a September 22, 2018 filing that opposed Take Two’s motion for summary judgment.

“NBA 2K” games allows users to play simulated NBA basketball games – complete with life-like images of prominent NBA players. With a spot-on depiction and digital recreation of an athlete like LeBron James comes the depiction of his tattoos – many of which are recognizable to fans and gamers alike – and the ensuing battle over who has ownership and control to license those images.

Solid Oak purchased the copyright to the images of the tattoos from actual tattoo artists. Now the company claims it – alone – owns the copyright to the tattoos. Take Two claims that James gave it permission (through the NBA as a third party) to use his name, image, and likeness in the video game. So, who’s right? Both parties could be.

Dual rights in a photo

Solid Oak’s recent motion argues there are two rights that content creators (and licensors) must be aware of when dealing with a photograph. First, the right of publicity, including name, image, likeness and how those can be used commercially. This means James can give a company permission to use his name, photos of him, and generally the way he looks in an advertisement, for example, to generate revenue. Solid Oak does not assert any interest in this right.

What it does assert is that it owns the copyrighted image of James’s tattoos. A copyright contains a bundle of rights, including the rights of reproduction and public display. According to Solid Oak, both of these rights were infringed by depiction of the tattoos in NBA 2K.

As a result, Solid Oak concedes that LeBron James owns his right of publicity, but argues that he has no power over use of the copyrighted image of tattoos on his body.

LeBron James: ‘I Have the Right to Have My Tattoos Visible When People or Companies Depict What I Look Like”

LeBron James feels differently. On Friday August 24, 2018, he testified on behalf of Take Two, stating “my understanding is that the tattoos are a part of my body and my likeness, and I have the right to have my tattoos visible when people or companies depict what I look like.”

Take Two argues that a ruling in Solid Oak’s favor would allow it to “shake down” any TV show or program. This could include NBA games broadcast on TV where well-known players and their tattoos are visible.

Does this mean LeBron James and other players could potentially violate copyright laws by simply appearing onscreen?

Potential Slippery Slope

Take Two argues there is a risk of chilled speech and content suppression if the court rules NBA players must secure licenses from tattoo artists prior to making appearances.

Earlier this year, Take Two argued its use of the tattoo images is protected under the fair use doctrine and the de minimis standard. However, U.S. District Court Judge Laura Taylor Swain declined to dismiss the case in March on either ground, seeking more facts.

One solution could be for NBA players to obtain signed releases from tattoo artists for each appearance depicting the player. The downside is this would significantly increase the burden on players to clear each appearance with a third party, leaving them with little control. This could be the result if the court rules in Solid Oak’s favor.

LeBron James was the highest rated player in “NBA 2K17,” indicating his prominence in the game, particularly with game users. But how big is the market for tattoo licensing? One expert for Take Two claims there is no tattoo licensing market for video games. Now, it is up to the court to weigh expert testimony on user preferences in “NBA 2K” and just how prominently the tattoos are displayed.

The court’s decision will likely affect the longstanding relationship between tattoo artists and NBA players – for better or for worse.

Mikella Persons Wickham is a law clerk in the firm’s Entertainment Department, based in its Los Angeles office.

Earlier this year, the leading online pornography site PornHub announced a ban on celebrity “deep fakes.” These are videos in which AI technology is used to place a celebrity likeness seamlessly over existing footage. The site stressed its commitment to the proposition that pornography must be consensual on the part of both makers and consumers, while deep fakes are tantamount to forced nonconsensual sex acts by the celebrities depicted. In a statement to Vice, PornHub’s position was unequivocal:  “We do not tolerate any nonconsensual content on the site and we remove all said content as soon as we are made aware of it. Nonconsensual content directly violates our TOS and consists of content such as revenge porn, deep fakes or anything published without a person’s consent or permission.”

The reference to revenge porn is particularly interesting, since this has emerged recently as a hot topic in the law. Unlike deep fakes, to which the celebrity has given no consent whatever, the victim of revenge porn generally participated in the creation of the erotic content only to have it disseminated later on the internet to embarrassing (to say the least) effect, usually by an ex-lover. Several states have sought to curtail revenge porn by means of criminal statutes, only to face challenges on First Amendment grounds, including from the ACLU.

The Hollywood studios have raised similar arguments regarding deep fakes. The MPAA, the lobbying organization for the major studios, has come out in opposition to a proposed New York statute criminalizing the use of “digital replicas” for pornographic purposes. In a memo setting out its reasoning, the MPAA notes that the bill lacks protections for expression that is clearly within the ambit of the First Amendment such as news reporting, commentary and analysis. The memo also points out the notorious slipperiness of defining pornography at all. (Although not alluded to in the memo, no less a person than Justice Potter Stewart could do no better than to throw up his hands and declare in a famous quote, “I know it when I see it.”)

By enshrining the right to free speech in the Constitution, the Founding Fathers insured that the United States would have a uniquely freewheeling public culture. Those estimable gentlemen could not have conceived, and, however open-minded for their times, would likely not have approved the terms of the current debate over deep fakes and revenge porn, but the vigorous clash of principles can yield surprising results and remains one of the great strengths of our system.

A man convicted of bludgeoning his father to death with a fireman’s ax and mutilating his mother in 2004 might have the right to collect damages from A&E Lifetime Entertainment for using his name and likeness without permission in the 2013 docudrama “Romeo Killer: The Christopher Porco Story.”  In 2013, Porco attempted to block the film’s release and filed suit pro se against A&E for violating New York‘s right of publicity statute Civil Rights Law § 50, which prohibits the unauthorized use of a living person’s name, portrait or picture for advertising or trade purposes.  The trial court originally enjoined the film’s broadcast, an extreme sanction, which was ultimately reversed on appeal.  A&E then moved to dismiss the case for failure to state a claim and initially succeeded, but the appellate court reversed in a groundbreaking decision.

Copyright: dorian2013 / 123RF Stock Photo
Copyright: dorian2013 / 123RF Stock Photo

The court acknowledged New York’s newsworthiness exception to § 50 which insulates defendants from liability for using a person’s identity in connection with a newsworthy story or matter of public concern, but found A&E could still be liable for using Porco’s likeness in a fictional biography based on a true story.

Porco alleges the film is not a news story but rather a “knowing and substantially fictionalized account” about the events leading to his imprisonment.  In support of his claims, Porco offered a letter written by one of the film’s producers to Porco’s mother that indicated a non-fictional documentary of the case would accompany the film where she could voice her position.  Drawing every inference in favor of Porco, the plaintiff, the appellate court found this evidence sufficient to withstand a motion to dismiss.

Various media companies including HBO, NBCUniversal, First Look, Discovery, CBS and the New York Times rallied to Lifetime’s aid and filed amicus briefs.  They argued countless movies that are based on real individuals and facts (e.g. “Argo,” “Saving Private Ryan,” “Too Big to Fail,” “Roots,” “Schindler’s List”, etc.) would likely have never been made if the filmmakers were required to obtain consent or (worse) afford creative control to every person portrayed in the film.

In California, the creators of the 82nd Academy Award’s Best Picture “The Hurt Locker” defeated a right of publicity lawsuit over the use of Explosive Ordnance Disposal technician Jeffrey Sarver’s identity.  The district court granted the filmmakers’ anti-SLAPP motions to dismiss the suit and the Ninth Circuit affirmed holding “The Hurt Locker” is speech that is “fully protected by the First Amendment, which safeguards the storytellers and artists who take the raw materials of life – including the stories of real individuals, ordinary or extraordinary – and transform them into art.”

Although “The Hurt Locker” decision reinforces California’s protection of docudrama producers against right of publicity claims, Fox Rothschild partner David Aronoff remains cautious.  In an interview with The Wrap, Aronoff said “To a large extent, right of publicity claims arise from the desire of persons of public interest to control the context and manner in which they are depicted.   As a result, expansion of the right of publicity could certainly have a chilling effect on creative works, since persons of public interest often want to restrict the uses of their names, likenesses and personas to only whitewashed and sanitized versions of their conduct.”

The TV manufacturer Vizio agreed to pay $2.2 million to settle a lawsuit brought by the Federal Trade Commission and the State of New Jersey over its data collection practices.

Smart TV
Copyright: scanrail / 123RF Stock Photo

The lawsuit alleged that the company’s internet-connected smart TVs were recording exactly what consumers were watching second by second. The sets were able to collect this data for shows from all sources, whether from cable or broadband service providers, set-top boxes, streaming devices, DVD players, or over-the-air broadcasts, amounting to 100 billion data points daily on millions of sets. Vizio then paired this information to customers’ IP addresses and sold it to data aggregators who in turn used the information to identify each individual consumer’s viewing habits, matched with detailed demographic information such as age, gender, income and education. The only information lacking were viewers’ actual names, but this was no impediment to companies eager to be able to feed highly targeted advertising to consumers.

In addition to the cash payment, Vizio agreed, without admitting liability, to stop unauthorized tracking, to prominently disclose its TV viewing collection practices, and to get consumers’ express consent before collecting and sharing viewing information. In addition, the company must delete most of the data it collected under the program.

What’s worth keeping in mind is that Vizio’s mistake wasn’t in collecting the data–that’s no different from what social media platforms and internet search companies do as their core business models. It was just not sufficiently transparent about its practices. With improved disclosure, it should be back to business as usual.

Just four days after the Actor Age Censorship Law (AB 1687) took effect on New Year’s Day, the controversial anti-age discrimination statute was forced to bear arms as IMDb, the world’s most popular entertainment database, took aim alleging the law infringes its right to free speech.  Since AB 1687 was passed last September, more than 2,300 subscribers have reportedly demanded IMDb to remove their ages.

Movie theater
Copyright: fergregory / 123RF Stock Photo

AB 1687 prohibits subscription-based online entertainment employment providers from posting actors’ ages.  Critics argue it targets IMDb and IMDb Pro as they are the only widely-known sites that permit subscribers to post resumes, headshots or other information for prospective employers with an express policy against removing accurate ages and birth dates.  Most competitor websites either do not permit actors to subscribe or already allow users to remove their ages.

On January 5, IMDb filed a motion for a preliminary injunction in the Northern District of California claiming a high likelihood its constitutional legal challenge will succeed on the merits and irreparable injury if the site were required to remove actors’ ages during the course of the case, which could span years.  IMDb’s chief contention is that the law is a content-based regulation of speech subject to strict scrutiny, a test only a handful of laws in the history of American jurisprudence have passed.  Conversely, if the publication of actors’ ages is categorized as commercial speech, it triggers a form of intermediate scrutiny.

In the seminal decision of Central Hudson, the U.S. Supreme Court defined commercial speech as “speech proposing a commercial transaction.”  Although many find it hard to construe posting an actor’s age as a commercial transaction as defined in Hudson, SAG-AFTRA Chief Operating Officer and General Counsel Duncan Crabtree-Ireland took a broader view of commercial speech in his interview with the Hollywood Reporter.  “IMDb Pro and are intimately entwined and interconnected” he said. “Both sites are commonly used by the casting community and both sites generate revenue for IMDb from a variety of sources, including the sales of subscriptions to the Pro service itself, as well as parent-company Amazon’s product line.”

Still, even if this speech is considered “commercial,” the Hudson Court found the regulation of truthful commercial speech is valid only if it directly advances a substantial state interest.  Opponents of the suit, including SAG-AFTRA, which has asked to join the case as a defendant, claim reducing age discrimination is a substantial state interest and the law’s narrow limitation to only subscription-based websites renders it sufficiently tailored.

IMDb disagrees and claims the law is under-inclusive in that it leaves numerous websites that do not sell subscriptions free to post actors’ ages for the industry to see and consider in making hiring decisions.  At the same time, IMDb argues the law is over-inclusive because it requires the site to remove the ages of all subscribers, even those who are not actors like directors, producers and casting agents who do not face a similar degree of age discrimination.

The preliminary injunction hearing is currently scheduled for February 16, 2017.

Trump’s election was a shocking surprise to many–Democrats and Republicans alike. Explanations for the upset have ranged from the benign to the sinister. What few have focused on is how Trump’s understanding of a transformed media environment enabled an unlikely candidate with no political experience to ride to victory.

Social Media
Copyright: fgnopporn / 123RF Stock Photo

In 1964, the media scholar Marshall McLuhan coined the phrase “The Medium Is the Message.” McLuhan’s insight was that the qualities of communications media themselves are more important in shaping the social environment than any particular content. Conversely, the great communicators understand how to craft the form and style of their messages, irrespective of content, to the media by which they will be transmitted.

To take an example outside politics, Bing Crosby was the first popular singer to understand the new medium of radio. Unlike the vaudeville singers before him, Crosby recognized the intimate space created around the radio receiver, crooned into the microphone and transformed popular performance style forever. Franklin D. Roosevelt had the same skill. The informal and direct style of his Fireside Chats conditioned the electorate to expect a more personal relationship with their leaders. Twenty-five years later, it was JFK’s cool television-friendly style, so evident in his first Presidential debate with  the dour and sweaty Richard Nixon, that was widely cited for its contribution to his 1960 victory.

In 2016, the candidates once again faced an unprecedented media environment. Social media, Twitter in particular, made it possible to communicate with the electorate completely without the intermediation of the press. Using a constant stream of tweets (one that has hardly abated since the election), Trump was able to hammer out his message, including epithets for his opponents (#crooked Hillary, #lying Ted) worthy of Homer.

There is no doubt that Trump’s unlikely candidacy changed the rules of politics, I suspect permanently. Many commentators have observed that Trump’s masterful use of social media was a significant component of the Trump phenomenon. What they overlooked, however, is that Trump’s mastery lay in his ability to frame his message, both on and off Twitter, in a form and style adapted to a society whose very habits of perception have been transformed by internet communications. Scholars are still working through what those transformations might be, but some obvious ones that resonate with what we saw in the Trump campaign include the short-circuiting of logical argument, indifference to fact, compressed syntax and gleeful attack. Did the “content” of Trump’s message matter to his voters? Of course, but the way he said it mattered as much.

From cast to crew, there is little question that age discrimination still exists in Hollywood.  While stereotypical example is that women of a certain age suddenly stop getting casts for parts; this discrimination may indeed be more prevalent among crew members who are passed over for jobs in favor of younger, albeit less experienced, employees due to concerns that older employees are out of touch or no longer able to put in the long hours required of film and television.

Senior woman
Copyright: atic12 / 123RF Stock Photo

In an effort to combat this discrimination, SAG-AFTRA, together with the Teamsters, WGA-West, the Association of Talent Agents, and the AARP of California, lobbied the California legislature to require subscription entertainment database websites, specifically, to remove a professional’s age upon request.  The proposed bill, AB-1687, was introduced by Majority Leader Ian Calderon (D-Whittier) and passed into law by Governor Jerry Brown on September 24, 2016.

The law does not apply to general information gathering websites. Only websites that “provide specified employment services” to “paid subscriber[s]” are required to remove the subscriber’s age from his/her profile upon request. Proponents of the law believe that subscribers should be able to control what of their information is disseminated to potential employers and that the elimination of age/DOB will reduce the occurrence of actual or implicit age discrimination in the industry.

The media and technology communities have raised concerns with the new law, specifically questioning whether it is a violation of free speech to suppress the publication of factually accurate information.  Formal challenges to the law have not yet been filed, but are anticipated.

Having an embarrassing photo posted on FaceBook is bound to happen to everyone. In fact, it is such a common occurrence that FaceBook even created a feature to allow the subject to “untag” his/herself from the photo in order to keep it off of his/her own Facebook feed. But what happens when someone is habitually posting embarrassing photos of you on Facebook? An 18-year-old Austrian woman is testing how privacy laws apply in this age of social media by suing the users that she claims have posted more than 500 embarrassing photos of her on Facebook, without her consent.  The culprits – her parents.  The images – childhood photos.

The woman is claiming that the photos are “violating her rights to a personal life” because they depict stages of her life including getting her diaper changed as a baby, potty training as a toddler, or running around naked as a young child. Despite having asked her parents to take down the photos and cease from future posts, her parents have taken that position that because they took the photographs they have the right to reveal them to the world.

Although this case will be decided under Austrian law, it is likely that similar suits will be subsequently filed in the States. Most states have laws which afford individuals legal privacy rights and the ability to take independent action if those rights are violated. These laws typically include the “public disclosure of private facts” as a privacy violation provided that the subject had a reasonable expectation of privacy regarding those facts.

That is where this case, and future cases, could get complicated. The question raised is whether someone has a reasonable expectation of privacy when they consent to have an embarrassing photograph taken knowing that they picture may very well end up on social media. The more complicated question will also have to be answered as it applies to minors – if a child under the age of consent is photographed by their parents, those legally allowed to consent on the child’s behalf, can the child argue later argue that she or he had a reasonable expectation of privacy or revoke consent? Simply stated, the courts will soon face the task of determining where the line exists between private family or childhood moments and the present social media culture of publically sharing every aspect of our lives.

Until these questions are answered, this case should serve as a cautionary tale for parents, siblings, or friends that like to post embarrassing photos of others. If the subject asks you to remove the photograph, consider abiding by such request.  If not, you could find yourself facing the next social media privacy lawsuit.

With social media applications such as Instagram, SnapChat, and Facebook, it seems like people document almost every moment of their lives online. But what the social media savvy may not know is that these posts could expose them to criminal liability.

A Playboy Playmate is learning this the hard way after taking photographs in a gym locker room and uploading them to SnapChat. One of the photos captured a naked woman using a gym shower.  After the photograph went viral, police began investigating whether the Playmate’s conduct violated California’s “Disorderly conduct: invasion of privacy” law.  The law holds that:

“[A]ny person who uses a concealed camcorder, motion picture camera, or photographic camera of any type, to secretly videotape, film, photograph, or record by electronic means, another, identifiable person who may be in a state of full or partial undress, for the purpose of viewing the body of, or the undergarments worn by, that other person, without the consent or knowledge of that other person, in the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which that other person has a reasonable expectation of privacy, with the intent to invade the privacy of that other person is guilty of disorderly conduct, which is a misdemeanor.”

Despite the Playmate not knowing the woman, and claiming that her post was not meant to be malicious, her actions fall within the conduct penalized by California’s law.  The woman, who remained anonymous for nearly two months, was identified this past weekend and has agreed to cooperate with the police in pressing charges. If convicted, the Playmate could face up to six months in jail.

This law was enacted in 2013 in response to the rising number of instances of revenge porn– that is, distributing a sexually explicit image of another, typically an ex-lover, without the person’s consent.  To date, 34 states have similar laws.  But, as this situation shows, the laws are not limited to malicious conduct and can be imposed on anyone who publishes a photo of another in a state of undress if that person is in a place where he/she has a reasonable expectation of privacy and has not consented to the photo.

Copyright: ldprod / 123RF Stock Photo

Pokémon Go, the augmented reality application that has swept the nation under the guise of getting today’s youth away from their computers and outside socializing with one another, is also changing how businesses learn about and target their consumers.  Like most applications, Pokémon Go collects a variety of information about its users, including the user’s email address, IP address, the web page used before logging into Pokémon Go, username, and location.  This information is then shared with “third-party service providers,” and “third parties” to conduct “research and analysis, demographic profiling, and other similar purposes.”  However, unlike previous applications, because of Pokémon Go’s sophisticated map data, which gives block-by-block detail instead of stating the user’s general area, this could be some of the most detailed social data currently available.  Third parties who receive this data will not only be able to determine user demographics, but also analyze where and when their target demographics congregate.

Even without this information, businesses are already capitalizing on the Pokémon Go success by incorporating it into their own advertising strategies.  Storefronts are paying Niantic, the application’s creator, to turn their locations into places to catch, train, or battle Pokémon.  This in turn creates additional foot traffic to the store which the businesses are hoping will in turn create customers.

But not everyone is happy with how Pokémon Go is being used gain information about its users.  It was recently uncovered that users who log into Pokémon Go using a Google account had to agree to provide Niantic with full access to their Google account – including their emails – in order to use the account.  Niantic claims this access was in error and that a patch is being created to end this access.