The Experts below are selected from a list of 99 Experts worldwide ranked by ideXlab platform
Tamar Gidron - One of the best experts on this subject based on the ideXlab platform.
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The Publicity Right in Israel: An Example of Mixed Origins, Values, Rules, Interests and Branches of Law
2007Co-Authors: Tamar GidronAbstract:Personality Rights are gaining force in Israeli law. The cluster of these Rights, namely the Right to reputation, privacy, the traditional moral Right and the Publicity Right, which rests on a mixture of origins, interests and values, poses some very interesting questions. Some of these questions will be analysed in this paper in light of a recent decision by Israel’s Supreme Court on the Publicity Right which will serve as a helpful case study. McDonald v McDonald ended a long and widely publicised advertising battle waged between two hamburger chains and a basketball player named Ariel McDonald. After tracing the essence and origins of the interests protected by the Publicity Right, the court decided that Israeli law protects this Right through the Unjust Enrichment Law (UJEL) rather than the Protection of Privacy Law (PPL) despite explicit references in the latter to circumstances of using someone’s image, picture or voice for profit. The court’s decision thus seriously handicapped and regrettably obscured this law in particular and the law of torts in general. The decision of Israel’s Supreme Court in the McDonald case will be analysed by applying two avenues of argumentation. First, “pure Israeli system-based” arguments relating to the inner logic of the structure of personality Rights at large and the Publicity Right in particular as constructed by Israeli legislation will be applied to the history of the Right’s evolution from a “non-existent” status to a debatable Right at the crossroads of constitutional law, tort law and UJEL. Secondly, the comparative law perspective, which offers a wealth of academic research and a rich diversity of theoretical and practical legal tools for conducting such an examination, will be used to support the position taken. Apart from providing a close look at the way the Publicity Right developed – between legislation and case law, between pure theory and real life – this paper will also show how delicate the use of comparative law is and how vigilantly the findings of comparative research should be applied.
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The Publicity Right in Israel : an example of mixed origins, values, rules, interests and branches of law
2007Co-Authors: Tamar GidronAbstract:Personality Rights are gaining force in Israeli law. The cluster of these Rights, namely the Right to reputation, privacy, the traditional moral Right and the Publicity Right, which rests on a mixture of origins, interests and values, poses some very interesting questions. Some of these questions will be analysed in this paper in light of a recent decision by Israel's Supreme Court on the Publicity Right which will serve as a helpful case study. Hierdie artikel handel met insiggewende ontwikkelinge op die gebied van persoonlikheidsregte in Israel en fokus veral krities op die uitspraak van die Israelse Hooggeregshof in McDonald v McDonald (Alonial) Ltd (no 1) 2004 IsrSC 58(4) 314. Daar word aangetoon hoe sowel deliktuele en verrykingsgebaseerde remedies persone se regte op publisiteit en privaatheid beskerm. Die gevolgtreking word bereik dat die reg van Israel ver gevorder het, vanaf 'n hoofsaaklik Engelsregtelike basis tot 'n komplekse en genuanseerde benadering wat inheemse ervaring sowel as invloede van vergelykbare stelsels weerspieel.
Diane Leenheer Zimmerman - One of the best experts on this subject based on the ideXlab platform.
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Foreclosing on Fame: Exploring the Uncharted Boundaries of the Right of Publicity
2002Co-Authors: Melissa B. Jacoby, Diane Leenheer ZimmermanAbstract:Since the 1950s in the United States, fame has increasingly been treated as a commodity rather than purely as a personal attribute. States, encouraged by entertainers, sports figures and their families, have created a new form of intellectual property interest called the Right of Publicity, a Right to exploit one's identity for commercial purposes. Not only does the Publicity Right permit famous people, and increasingly their heirs and legatees, to control how their names and faces are used in a wide variety of settings, and to demand payment for approved uses, but the Right is freely alienable; it can be transferred to third parties in whole or in part. Most of the scholarship examining this form of intellectual property has concentrated on the justifications for giving famous people this kind of control over (and Right to profit from) the commercial use of their identities, and on the First Amendment ramifications of the interest. In other words, the scholarship has focused on the pros and cons of creating a property interest that advantages a celebrity, her heirs and assigns. But the legal assignment of property status to an interest can, under some circumstances, decrease, rather than increase, the control that the owner has over the valued asset. That darker side of the equation has received almost no attention either in the literature or in the case law dealing with Publicity. In this article, we examine the Right of Publicity as an asset in the context of the debtor-creditor system. Whereas personal Rights in one's privacy or reputation are generally unavailable for creditor seizure and sale, the transformation of the persona of an individual into a commodity logically should make it vulnerable to seizure by an unsatisfied creditor, permitting the control over how the Right is exploited to be transferred by sale to the highest bidder. The Right of Publicity presents some complexities in the debtor-creditor context because the property interest may in some cases need to be disentangled from its residual overlay of personal Rights, and because the use of property to satisfy a creditor's claims in insolvency must be handled in a way that respects the debtor's Right to the benefits of her future labor. Our examination of the issues leads us to conclude that the complexities presented by treating Publicity Rights as property in the debtor-creditor context are resolvable, and indeed are similar to those presented by other types of property that are currently recognized in the debtor-creditor system and used to satisfy unpaid debts; the complexities do not militate against treating the Right of Publicity as an asset in the debtor-creditor system.
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Fitting Publicity Rights into Intellectual Property and Free Speech Theory: Sam, You Made the Pants Too Long!
SSRN Electronic Journal, 2000Co-Authors: Diane Leenheer ZimmermanAbstract:This paper examines a form of common law intellectual property Right, the so-called Right of Publicity. It argues that a Right of this kind, unfettered by theoretical limits, represents a serious threat to the public domain. In the past, scholars have argued that new common law Rights of this kind were acceptable as long as they abided by a set of limiting principles that could be derived from the theory of copyRight and patent law. This paper takes the position that "limiting principles" of this sort have lost their force as the legal culture comes to rely more and more on a privatization model for the management of intellectual as well as tangible resources. This change in philosophy, understandably, reduces the useful role that intellectual property theory can play in protecting a viable public domain, but it throws into relief a second source of limits that is all-too-frequently missing from the dialogue about developing IP Rights: the first amendment. The first amendment cannot be understood, in light of existing case law, to bar all privatization of information, but it does severely limit the possibilities. Trademarks and trade secrets are examples of Rights that pass muster, at least within reasonable bounds. But none of the existing rationales seems capacious enough to include any but the most unusual Publicity claim, particularly where the alleged violation is attaching an image or a name or other identifying characteristics of a well-known person to an article of clothing, or a coffee mug, or a poster, or a commemorative button ? all areas traditionally claimed as the exclusive preserve of the owner of the Publicity Right in question. The paper uses a current California case, Comedy III Productions, Inc. v. Gary Saderup, Inc., to illustrate why a property Right cannot extend to images on a T-shirt.
Cui Shuan-lin - One of the best experts on this subject based on the ideXlab platform.
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On the Legal Status of the Deceased——Taking the Publicity Right of the Deceased Abroad as Main Object of Investigation
Journal of Shanxi Normal University, 2008Co-Authors: Cui Shuan-linAbstract:In the field of civil law in China,as to the dispute on personal Right enjoyed by the deceased,there are some different opinions."The theory of protecting proximity" is the most persuasive logically and exercisable practically among them.Similarly,from the Anglo-American law system and continental law system,on the issue of "Publicity Right of the deceased(personality Right of the deceased) "which is concerned with protecting and utilizing Publicity of the deceased(inter vivos),the same debate exists."Theory of protecting proximity" and its corresponding thought to balance benefits of relevant legal subject(the deceased are not included) are the standpoint we should insist on when we analyze the issue of "Publicity Right of the deceased(personality Right of the deceased)".
Kelsey Farish - One of the best experts on this subject based on the ideXlab platform.
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Do deepfakes pose a golden opportunity? Considering whether English law should adopt California's Publicity Right in the age of the deepfake
Journal of Intellectual Property Law & Practice, 2019Co-Authors: Kelsey FarishAbstract:In 2017, a machine learning algorithm was published online as a tool to insert faces of celebrity actresses into pornographic videos. This “deepfake” phenomenon has since spread across social media, and is no longer confined to sexual contexts. The technology can be used to swap faces in film scenes, or even digitally insert people into their favorite movie clips. Although the results are often comical, deepfake sophistication and realism has rapidly improved over the last several years, making them difficult to spot as fake. There is a growing concern that such videos could be used to extort, intimidate, or otherwise defame an individual. In such instances, could the victim portrayed in the deepfake bring a lawsuit against its creator? In California, perhaps. There, a person has a statutory and common law “Publicity Right”, which is a cause of action used to prevent or penalize any misappropriation of one’s image, photograph, or voice. By contrast, the lack of a recognized image Right under English law can be a source of frustration amongst claimants, and debate amongst lawyers. Drawing upon her knowledge of English and Californian law, the author explores whether or not California’s codified Publicity Right is superior to that of the English piecemeal approach, using the deepfake phenomenon as a case study.
Michael L. Wells - One of the best experts on this subject based on the ideXlab platform.
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Remedies for the Misappropriation of Intellectual Property by State and Municipal Governments Before and After Seminole Tribe: The Eleventh Amendment and Immunity Doctrines
Washington and Lee Law Review, 1998Co-Authors: Paul J. Heald, Michael L. WellsAbstract:Introduction Consider the following appropriations of intellectual property that might be committed by public employees: ( 1 ) During the course of her development of a new technique for cheaply producing large amounts of the anti-cancer drug taxol, a professor at a public university makes unauthorized uses of a patented cloning process; (2) In the course of training new accountants in a state tax office, a supervisor makes and distributes photocopies of a substantial portion of a popular accounting text; (3) In order to calm parents who are worried about the quality of the food in a public elementary school cafeteria, the principal misleads them into believing that the food is made by a popular local catering service; (4) In the course of her regulatory duties, an employee of a state environmental agency releases confidential business information to the public without the owner's consent; (5) In order to commemorate famous residents of its state, the head of the state's tourism office strikes and sells medals of several popular entertainers. Given the likely inadequacy of a suit for infringement against an individual who has committed a wrongful act, owners of patents, copyRights, trademarks, trade secrets, and Publicity Rights have begun to bring suits against the governments that benefit from misappropriations by their officials. The answer to the simple but important question of whether a state or local government can be held liable for the unauthorized appropriation of private intellectual property turns out to be frustratingly complex. The result of a lawsuit brought by an aggrieved Rights-holder will turn on numerous variables: Is the named defendant in the suit the state government, a state employee acting in his official capacity, a municipality, a municipal employee acting in his official capacity, or an individual? Is the requested relief monetary or injunctive? Is the intellectual property at issue a patent, copyRight, trademark, trade secret, Publicity Right, or the Right to be free from false advertising? Is the suit brought in state or federal court? Is the cause of action based on state law or federal law? Is the appropriation an exercise of a state's Right of eminent domain or an inverse condemnation of property under the Takings Clause? The recent enactment of federal legislation purporting to abrogate state immunity from suit in cases involving patents,1 copyRights,2 trademarks,3 and false advertising4 promised briefly to simplify the question of state liability. The Supreme Court's subsequent landmark decision in Seminole Tribe of Florida v. Florida,5 however, has reinvigorated state claims to sovereign immunity and thereby increased uncertainty over the potential liability of a state or a state actor for the unauthorized use of intellectual property. Given the increasingly important role played by intellectual property in the economy, particularly in the areas of computer software and biotechnology, and given the pervasive use of intellectual property by state agencies and universities,6 the need for clarity is particularly acute. State and municipal governments desperately need guidance on the precise parameters of their potential liability, especially because courts and commentators have begun to conclude, too hastily in our view, that Seminole Tribe nullifies the abrogating statutes.' In order to construct a liability roadmap for the states, specialists in the substantive law of intellectual property and experts in the field of federal jurisdiction must combine forces. Although the contours of intellectual property protection are continually shifting and the law of federal jurisdiction is notoriously slippery, a convincing picture of much of the law governing the misappropriation of intellectual property by governments and governmental actors can be outlined, and unresolved issues can be identified with some precision. Part I of this Article addresses relief available to intellectual property owners under the Takings Clause ofthe Fifth Amendment. …
