damey asked:


When your marriage is at the verge of a break up, many people do not realize the importance of their rational and practical thinking. Many of them get overwhelmed by emotions and often leave various things uncontested and regret their costly mistakes later. Hence, hiring a divorce lawyer NYC is very important to assure that you do not make these mistakes. Apart from the good legal advice, they also help you deal with legal technicalities and paperwork that needs to be prepared for your divorce. A reliable lawyer by your side is a great support to you during this tough phase of your life.

In fact, many good divorce lawyers in the New York City also help their clients overcome the emotional trauma and start their life anew. Your lawyer is your representative in the court of law and thereby fights for your rights for which you are eligible according to the New York state divorce laws. This involves your rights over the custody of your children, your joint back account amount, division of property, alimony, child visitation and others.

This is why, it is very important to select a divorce lawyer NYC who is easy to talk with, with whom you can share your experience of marriage as to why you are seeking divorce so as to make the lawyer know the case better and analyze the grounds on the basis of which divorce can be sought. Common basis on which divorce is sought by married couples are physical abuse, extra marital affair of the spouse, incompatibility and many others.

However, there are many couples who separate and do not stay together in life but do not seek divorce due to the expenditure involved in divorce cases. Nonetheless, to claim your rights such as alimony and others, it is essential to file a divorce case in the court of law. The divorce is granted by the court along with the clearly defined terms and conditions about the claims of both the partners in everything from assets involved to child custody.

Hence, for the smooth working and timely progress of your divorce case, it is better to rely on divorce lawyer NYC. There are also certain formalities that need to be fulfilled by both parties for legal separation to present their eligibility according to the New York state laws for the grounds on the basis of which divorce is sought. Without the help of an efficient and confident lawyer, this can make the situation go worse for you. It is essential for both parties to have a complete contract that states that both the parties consent to live separately from now on.

So, from attending to all your legal formalities to providing you the peace of mind from the emotional trauma that you are undergoing, divorce lawyer extends a great helping hand to you. You simply need to hold this hand and place your trust in them. So, what are you waiting for? If you are stuck in any such situation, call a divorce lawyer before it’s too late.



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Thomas F. Zuber asked:


Creation of the Right of Publicity in California

The “right of publicity” is generally defined as the right to control or prevent the unauthorized use or commercial exploitation of one’s name, likeness, voice or “personality.”[1] The right of publicity evolved from the right of privacy, which itself has evolved dramatically over more than a century. In 1890, Samuel D. Warren and Louis D. Brandeis published a seminal article in the Harvard Law Review entitled The Right to Privacy,[2] in which they argued for a remedy for those injured by unauthorized public disclosure of truthful but embarrassing private facts.[3]

By the mid 1900’s, some courts and state legislatures had adopted some elements of the Brandeis-Warren theory. However, the question arose as to how to apply these rights to celebrities who had voluntarily and affirmatively sought the spotlight.

Second Circuit Judge Jerome Frank answered that question in 1953 when he coined the term “right of publicity” in the case of Haelan Laboratories Inc. v. Topps Chewing Gum, Inc. [4] The Haelan case asked whether a baseball player could assign exclusive rights to produce a card with his photograph on it to one single baseball card manufacturer.[5] The court determined that prominent persons do possess a “right of publicity”[6] which was an assignable interest, unlike the strictly personal – and therefore non-assignable — right to privacy.[7]

Judge Frank’s opinion was followed by a prominent article by Professor Melville B. Nimmer that analyzed the right to publicity as an assignable property right.[8] Nimmer explained that a mere right to privacy did not sufficiently address the issues unique to celebrities; while the right to privacy protected individuals from indignity and embarrassment, the right to publicity dealt with a celebrity’s ability (and, theoretically, anyone’s ability) to protect the commercial value of his or her image and identity.[9]

California first codified the right of publicity in 1971, when the California legislature enacted Civil Code section 3344, which enables recovery by any living person whose name, photograph, or likeness has been used for commercial purposes without his or her consent.[10] California courts have recognized both the statutory and the common law right of publicity. [11]

 However, both the common law and statutory rights of privacy were only available to living plaintiffs; the right was not freely descendible and thus expired by operation of law upon the death of the person claiming the right.[12] This very issue lay at the heart of two seminal companion cases decided in 1979: Lugosi v. Universal Pictures[13] and Guglielmi v. Spelling-Goldberg Productions.[14] In those cases, the California Supreme Court determined that the heirs of deceased celebrities had no statutory protections against posthumous exploitation of the celebrity’s image.

In Lugosi, the heirs of actor Bela Lugosi (best known for playing the title role in the 1930 movie, “Dracula”) sued to enjoin and recover profits from Universal Pictures for licensing Lugosi’s name and image on merchandise.[15] The California Supreme Court upheld the decision of appellate court in finding that the right to exploit one’s name and likeness is personal and must be exercised, if at all, by him during his lifetime.[16]

Similarly, in Guglielmi, the California Supreme Court cited to and relied upon its opinion Lugosi in holding that Rudolph Valentino’s heirs could not obtain an injunction or damages from the defendant because Valentino’s right of publicity was not descendible under California law.[17] Because Valentino had not exploited his name and likeness during his lifetime, others could now use it without liability to Valentino’s heirs.[18]

Courts outside of California honored the Lugosi and Guglielmi decisions as well in applying California law. In Groucho Marx Productions, Inc. v. Day and Night Company, Inc.[19], the Second Circuit held that the rights of publicity were not descendible under California law. In that case, the Marx Brothers’ assignees sued a production company for interference with the assignees’ publicity rights; the production company incorporated three characters that strongly resembled the Marx Brothers in its Broadway musical, “A Day in Hollywood/ a night in the Ukraine.” The federal district court in New York had applied New York law, determining that New York recognized a descendible right to publicity and granting summary judgment to the plaintiffs.[20] The Second Circuit, however, reversed that decision, holding that the descendibility issue was governed by California law and as a result, the plaintiffs had no right to relief.[21]

Legislating a Post-Mortem Right of Publicity

The holdings in Lugosi and Guglielmi precipitated legislation designed specifically to create a statutory descendible right to publicity. In 1984, the California legislature enacted Civil Code section 990 (renumbered as section 3344.1 in 1999), creating a post-mortem right of publicity for “deceased personalities,” – individuals whose names, voices, signatures, photographs, or likenesses had commercial value as of the time of their death.[22] This legislation became effective January 1, 1985.

Section 990 explicitly stated that the right of publicity is a property right, “freely transferable, in whole or in part, by contract or by means of trust or testamentary documents” whether that transfer occurs before, by or after death of the personality.[23] The statute held that absent an explicit transfer of this right, it automatically goes to the statutory/ intestate heirs of the deceased (spouse, children, parents).[24] If the celebrity fails to transfer the right explicitly and dies without any statutory heirs, the right of publicity terminates.[25] Otherwise, the extended right of publicity would expire 50 years after the death of the deceased personality.[26]

In an attempt to maximally preserve First Amendment protections for creative outlets, the new statutory provision exempted from liability plays, books, magazines, newspapers, musical compositions, films, and radio and television shows that used a deceased celebrity’s likeness, name, voice, etc.[27]

 The registered owner of the posthumous rights to The Three Stooges comedy act relied on section 990 to obtain damages against an artist who reproduced his charcoal drawings of the act on lithographs and t-shirts.[28] The artist had claimed that his artwork was creative and transformative enough to warrant First Amendment protection against the plaintiff’s right of publicity claim, just like the specifically listed exemptions in the statute. The court agreed that when a work of art is so transformative that the value of the work derives primarily from the skill and creativity of the artist rather than from the fame of the celebrity depicted, the work may be protected by the First Amendment.[29] However, the court determined that Saderup’s depictions were more literal than transformative — a clear attempt merely to exploit the Three Stooges’ fame — and therefore First Amendment protection did not apply.[30] If Saderup wanted to continue to use these images, he needed to obtain the consent of the right of publicity holder.

However, that same list of exempt uses in section 990 posed new problems, exemplified in two main cases:

In Joplin Enterprises v. Allen,[31] a federal district court applied section 990 to find that a two-act biographical play about deceased singer Janis Joplin was not actionable. Joplin’s devisees alleged that the play constituted copyright infringement as well as misappropriate of Joplin’s privacy and publicity rights.[32] The court determined that section 990 applied only to unauthorized “merchandise, advertisements and endorsements,” and it explicitly exempted plays from liability.[33]

The Ninth Circuit similarly exempted an instructional dance video from liability under section 990 in Astaire v. Best Film & Video Corp.[34] In Astaire, the widow of famed dancer Fred Astaire sued a videotape manufacturer for using Fred Astaire’s image in a series of dance instructional videotapes – each tape opened with about 90 seconds of footage of Astaire. Mrs. Astaire claimed the company violated her statutory right to control the use of her husband’s name and likeness under section 990.[35]

The Central District of California agreed with Mrs. Astaire, finding that the company used Astaire’s image “on or in products, merchandise, or goods” in violation of the statute.[36] But the circuit court reversed and remanded, finding that the pre-recorded videotapes fell into the “film” exemption of section 990(n).[37] Indeed, the court determined that the film exemption applied even if the use was an advertisement or commercial announcement.[38]

The Astaire Amendment: Deleting exempt uses

After losing her difficult and expensive lawsuit, Mrs. Astaire teamed up with the Screen Actors Guild to sponsor legislation that would clarify and expand the post-mortem right of publicity. That bill, SB 209, passed in 1999 and became known as the “Astaire Celebrity Image Protection Act.”

 Most significantly, the Astaire Amendment eliminated the list of exempt uses of deceased celebrity likenesses, thereby substantially increasing the types of uses for which consent of the celebrity’s heirs is required. The bill also extended the descendible right of publicity from 50 years to 70 years following the celebrity’s death.[39]

Despite these amendments to clarify and expand the descendible posthumous right of publicity, there remained a gap in the law that was revealed by two similar cases regarding the posthumous rights of Marilyn Monroe: Milton H. Greene Archives, Inc. v. CMG Worldwide, Inc.[40] and Shaw Family Archives, Ltd. v. CMG Worldwide, Inc.[41] (collectively, the “Monroe cases”). When Marilyn Monroe died, she left the residue of her estate to her acting coach, Lee Strasburg, who, upon his death, left most of his estate to his wife, Anna Strasberg.[42] Anna Strasberg then transferred her interest in Monroe’s estate to Marilyn Monroe LLC, who licensed CMG Worldwide, Inc. to use Monroe’s images and likenesses.[43] In these two actions, CMG sued other parties for their unauthorized use of Monroe’s image.

In the Monroe cases, both courts interpreted section 3344.1 as prohibiting publicity rights from passing by will if the personality died prior to January 1, 1985.[44] In other words, the statutory descendible right of publicity did not exist when Monroe died, so, by operation of law, it could not have been a property right that she possessed upon death.[45] Because Monroe did not own this property right at the time of her death, she could not have transferred it in the residuary clause in her will.[46] Moreover, even if Monroe did possess the right, section 3344.1 only enables transfers to statutory heirs – Monroe had no statutory heirs, so her right would terminate in any event.[47] Both courts ruled against CMG on summary judgment.

The holdings in the Monroe cases had unsettling implications. Many deceased celebrities and their devisees left or transferred residual estates to charitable organizations, which relied in part on their ability to license the famous images for fundraising purposes. The Monroe holdings effectively removed from these organizations many rights they had relied upon. Reflecting these concerns, the federal district court for the Central District of California wrote:

The court reaches this conclusion with some reluctance because … at least some personalities who died before passage of the California … right of publicity statute[] left their residuary estates to charities, which will be “divested” of those rights under the court’s holding… As noted, however, nothing in this order prevents legislatures from enacting right of publicity statutes so as to vest the right of publicity directly in the residuary beneficiaries of deceased personalities’ estates or their successors-in-interest.[48]

 The 771 Amendment: Enabling retroactive transfers to residual estates

The California legislature wasted no time following the suggestion of the Milton H. Greene court. Merely six weeks after that opinion was published, State Senator (and former child actor) Sheila Kuehl[49] fast-tracked through the legislature[50] Senate Bill 771, designed specifically to clarify the scope of Cal. Civil Code section 3344.1 and to abrogate the decisions in the Monroe cases.[51]

The somewhat controversial SB 771 accomplished several goals. First, it explicitly stated that a deceased celebrity’s right of publicity applies to individuals whether or not they died before January 1, 1985.[52] The amendment deems, retroactively, that a deceased celebrity’s right of publicity existed and was transferable even if they died before the enactment of section 3344.1.[53] In the event the celebrity did not expressly transfer this right (and why would they, if they didn’t know it existed?), the right became part of the deceased personality’s residual estate and was transferred to whomever received those assets.[54] The resulting owner of that right has 70 years from the date of the celebrity’s death to control use of the celebrity’s image for commercial purposes.[55]

Despite the efforts to get SB 771 drafted and passed quickly, it still did not help CMG Worldwide and Marilyn Monroe LLC (“MMLLC”). On November 21, 2007, armed with the newly-passed SB 771, CMG and MMLLC filed a motion for reconsideration in the Milton H. Greene case, which the federal district court granted.[56] The court agreed that, due to the passage of SB 771, CMG and MMLLC did have standing to assert Monroe’s posthumous right of publicity under California law.[57] However, after a detailed analysis, the court determined that Monroe was domiciled in New York, not California, at the time of her death.[58] Because New York did not recognize either a common law or statutory posthumous right of publicity in 1962 and because, unlike California, New York has not passed a statute to recognize such rights retroactively, Monroe did not possess the right to publicity when she died and therefore could not have transferred it in her will.[59]

Right of Publicity Laws in Other States

 Though the right of publicity is derived from the Constitutional notion of the right of privacy, it is created and enforced via state laws. At least nineteen states have developed and passed a statutory right of publicity[60]; not all of them treat the right as descendible.[61] At least eleven other states only recognize a common law right to publicity.[62] The American Law Institute’s Third Restatement of Unfair Competition (1995), section 46, also recognizes the right of publicity as a separate legal theory.

The state of Indiana actually has the most comprehensive right of publicity statute on the books.[63] Enacted in 1994, Indiana’s law protects a deceased individual’s right of publicity for 100 years after his death and includes protections for the celebrity’s signature, photograph and gestures, as well as the more typical name, image and likeness.[64] Otherwise, Indiana’s law is similar to Cal. Civil Code section 3344.1.

 New York, on the other hand, gives celebrities a statutory claim against the use of only their “name, portrait, or picture…. for advertising purposes or for the purposes of trade.”[65] New York Senator Martin Golden and Assemblywoman Helene Weinstein presented SB 6005/ Assembly Bill A08836[66] to the New York Legislature. While early attempts were made to rush that bill through the New York legislature, the bill was halted, apparently due to concerns that it is overly broad in nature, posing potential conflicts with Constitutional rights and other rights.[67]

Potential Negative Implications of SB 771

The New York legislature’s hesitancy to rush right into endorsement of its bill — the identical twin to California’s SB 771 — reflects some of the real concerns about and potential problems resulting from SB 771.

Because SB 771 is retroactive in nature, it may grant rights to some people retroactively while taking away from others rights that they had relied upon by entering into contracts and otherwise lawfully exploiting certain images.[68] As a result, this area is certainly ripe for testing, with the strong possibility of some untenable judicial results and, subsequently, more statutory amendments.

 The statute attempts to preempt some future litigation by including this condition: If a statutory heir[69] exercised his or her rights to exploit a deceased celebrity’s likeness before May 1, 2007, and that exercise was not challenged successfully in court by a transferee of the celebrity’s residual estate, the residual estate transferees cannot use SB 771 to now come back and claim that right to publicity.[70] In fact, in this factual scenario, the residual estate is forever barred from claiming the right of publicity, which remains with the statutory heirs throughout the statutory period.[71]

 However, that statutory provision does not address what will certainly be the more common situation – when the transferees of a celebrity’s residual estate file suit for damages and an injunction against a person or company that lawfully used that celebrity’s image or likeness for commercial purposes long before enactment of SB 771. Due to the retroactive nature of SB 771, the residual estate could theoretically reach back many years and disgorge substantial profits from an entity whose use had been legal throughout that time, as well as permanently enjoin future use by an entity who may have built an entire brand around the use.

 Because the right to publicity differs so dramatically from state to state, and because there is so much overlap between right to publicity issues and issues dealing with trademark and copyright law, First Amendment protections, and other laws, several groups are pressing for Congressional enactment of a federal right to publicity law. The proposal by the International Trademark Association, for example, would amend the Lanham Act to add a federal right of publicity that would specifically preempt all state law, both statutory and common law.[72]

 The INTA’s proposed federal law does include a descendible and transferable right of publicity effective for a period of time after a celebrity’s death.[73] However, it also includes a provision that the California’s law lacks – a “grandfather clause” that protects the rights of prior users.[74]

Conclusion

Undoubtedly, California’s right of publicity statute remains on the frontlines of the evolution of this legal concept. As home to an abundance of celebrity’s, California’s statute is frequently tested and amended when those tests reveal a gap in the law. Senate Bill 771 represents only the latest step in the evolution, but it probably goes too far, creating more legal problems than it may solve.

As a result, SB 771 certainly will not be the last word on California’s statutory descendible right of publicity. Whether ultimately preempted by a new federal law or not, the California statute will need to address the rights of prior users who acted in reliance on their pre-SB 771 rights and are harmed as a result of this retroactive bill. Future litigation on this very issue, likely followed by yet another legislative amendment, is predictable.

——————————————————————————–

[1] See, e.g., Miller v. Glenn Miller Prod., Inc., 454 F.3d 975, 99. 988-989, n.6 (9th Cir. 2006).

[2] Samuel D. Warren and Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890).

[3] Id. at 213.

[4] 202 F.2d 866, 868 (2nd Cir. 1953).

[5] Id. at 867.

[6] 202 F.2d at 868.

[7] Id. at 868-869.

[8] Melville B. Nimmer, The Right of Publicity, 19 Law & Contemp. Probs. 203 (1954).

[9] Id. at 203-04.

[10] Cal. Civil Code. Section 3344(a). The statute exempts from liability uses made in connection with  news, public affairs, sports broadcasts or accounts, and political campaigns. Cal Civil Code, section 3344(d).

[11] Miller v. Glenn Miller Prod., Inc., 454 F,3d 975, 988-89, n.6 (9th Cir. 2006).

[12] Lugosi v. Universal Pictures, 25 Cal. 3d 813, 820-822 (1979).

[13] Lugosi, supra.

[14] 25 Cal. 3d 860 (Cal. 1979).

[15] Lugosi, 25 Cal. 3d at 817.

[16] Id. at 822-823.

[17] 25 Cal. 3d at 864.

[18] The implication is clear that had Lugosi and Valentino actually contracted with the defendants regarding use of their likenesses during their lifetimes, the heirs would have the right to enforce those contracts posthumously. In these cases, however the defendants were using the images without the benefit of a contract that related to use of the images.

[19] 689 F.2d 317 (2d Cir. 1982).

[20] 689 F.2d at 319.

[21] Id. at 323.

[22] Cal. Civil Code section 3344.1(h).

[23] (Former) Cal. Civil Code section 990(b) (now amended and renumbered)

[24] Id. at 990(d).

[25] Id. at 990(e).

[26] Id. at 990(g).

[27] Id. at 990(n).

[28] Comedy III Productions Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387 (2001).

[29] 25 Cal. 4th at 407.

[30] Id. at 409.

[31] 795 F. Supp. 349 (W.D. Wash. 1992).

[32] Id. at 350.

[33] Id. at 351.

[34] 116 F.3d 1297 (9th Cir. 1997), as amended by 136 F. 3d 1208 (9th Cir. 1998).

[35] 116 F.3d at 1299.

[36] Id. at 1300.

[37] Id. at 1301-1302.

[38] Id. at 1302.

[39] Cal. Civil Code section 3344.1(g).

[40] Milton H. Greene Archives, Inc. v. CMG Worldwide, Inc. (unreported), (No. CV-05-02200MMM), 2008 WL 655604 (C.D. Cal. Jan. 7, 2008), summary judgment affirmed by Milton H. Greene Archives v. CMG Worldwide, Inc., ___ F. Supp. ___. 2008 WL 1922980, No. CV 05-2200 MMM (C.D. Cal. March 17, 2008).

[41] 486 F. Supp. 2d 309 (SDNY 2007).

[42] Shaw, 486 F. Supp. at 312.

[43] Id.

[44] Id. at 317; Milton H. Greene, 2008 WL 655604, at *1.

[45] Shaw at 319; Milton H. Greene, 2008 WL 655604, at *1.

[46] Shaw at 319.

[47] Shaw at 319; Milton H. Greene, 2008 WL 655604, at *1-2.

[48] Milton H. Greene court’s May 14, 2007 Order granting summary judgment in favor of plaintiffs, at 36:15-20, n.38 and n.80.

[49] The bill was drafted and sponsored by the Screen Actors Guild at the urging of CMG. It received strong support from the Cecil B. DeMille Foundation, the Marilyn Monroe LLC, the Motion Picture and Television Fund, [John] Wayne Enterprises and the California Labor Federation.

[50] The  bill passed through the California legislature on September 7, 2007 and was signed into law by governor Arnold Schwarzenegger on October 10, 2007. It took effect January 1, 2008.

[51] Section 2 of Stats. 2007, c. 439 (S.B. 771).

[52] Cal. Civil Code section 3344.1(b).

[53] Id.

[54] Id.

[55] Cal. Civil Code section 3344.1(g).

[56] Milton H. Greene Archives v. CMG Worldwide, Inc., ___ F. Supp. ___. 2008 WL 1922980, No. CV 05-2200 MMM (C.D. Cal. March 17, 2008).

[57] ____ F. Supp. at ____; 2008 WL 1922980 at *3.

[58] More specifically, the court found that authorized representatives of Monroe’s estate had repeatedly represented in various forums that Monroe was a resident of New York, not California, and was only in California temporarily for work, with no intent to remain in California.  The court performed a lengthy and detailed analysis to determine that CMG was barred by judicial estoppel from asserting that Monroe was domiciled in California and therefore possessed a right of publicity under California laws. 2008 WL 1922980, at *33 - *34.

[59] Id. at *3.

[60] These 19 are: California (Cal. Civ. Code section 3344 and 3344.1), Florida (Florida Stat. section 540.08), Illinois (Ill. Rev. Stat. ch. 765 section 1075/1 et seq.), Indiana (Ind. Code section 32-36-1 et seq.), Kentucky (Ky. Rev. Stat. Ann. Section 391.170), Massachusetts (Mass. Gen. L., ch. 214 section 3A), Nebraska (Neb. Rev. Stats. Section 20-202), Nevada (Nev. Rev. Stat. sections 597.770 - 597.810), New York (N.Y. Civil Rights Law sections 50, 51), Ohio (Ohio Rev. Code Ann. Sections 2741.01 et seq.), Oklahoma (Ok. Stat., Title 12, sections 1448 and 1449), Pennsylvania (Pa. Cons. Stat. Title 42, section 8316), Rhode Island (R.I. Gen. Laws sections 9-1-28 and 9-1-28.1(a)(2)), Tennessee (Tenn. Code Ann sections 47-25-1102 to 47-25-1107), Texas (Texas Prop. Code Ann. Section 26.001 et seq.), Utah (Utah Code Ann. section 45-3-1 et seq.), Virginia (Va. Code section 8.01-40), Washington (Wash. Rev. Code Ann. 63.60-010 et seq.) and Wisconsin (Wisc. Stat. section 895.50(2)(b)).

[61] The following states’ right of publicity statutes do not appear to grant rights after death: Massachusetts, Nebraska, New York, Rhode Island, Pennsylvania, Utah, and Wisconsin.

[62] They are: Alabama, Arizona, Connecticut, Georgia, Hawaii, Maine, Michigan, Minnesota, Missouri, New Jersey, and Oregon.

[63] Ind. Code. Ann. Sections 32-36-1 et seq.

[64] Id. at 32-36-1-7 and 32-36-1-8(a).

[65] N.Y. Civ. Rights Law sections 50 and 51 (McKinney 2007).

[66] The New York bill is essentially identical to California’s SB 771. Like SB 771, it was introduced immediately after publication of the Monroe decisions and was similarly backed by CMG. There were rumors that CMG had hired a lobbyist specifically to assist the bill’s expedition.

[67] “Marilyn Monroe Historic Legislation Halted – Surprise to CMG and MMLLC”, PR-inside.com, June 25, 2007, located at http://www.pr-inside-com/marilyn-monroe-historic-legislation-halted-r161341.htm#.

[68]David Marcus, attorney for the Shaw Family Archives, claims (without specificity) that SB 771 conflicts with California laws relating to wills and estates. New York intellectual property attorney Nancy Wolff asserts that the California legislature violated its own procedural rules when it rushed SB 771 through. (“California Adopts New Right of Publicity Law,” pdnonline.com, October 12, 2007 (located at http://www.pdnonline.com/pdn/newswire/article_display.jsp?vnu_content_id=1003658099). If either or both of these assertions are true, they would provide additional grounds for legal challenges to SB 771.

[69] Other than someone who was specifically disinherited by the deceased personality. Cal. Civil Code section 3344.1(o).

[70] Id.

[71] Id.

[72] See the INTA’s Adopted Resolution on the Federal Right of Publicity at http://www.inta.org/index.php?option=com_content&task=view&id=285&Itemid=153&getcontent=3.

[73] Id.

[74] Id.





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jim wilson asked:


As per the Journal Archives of Surgery which got published on March 17th, several informative facts were highlighted. It was found that even after a year of receiving injuries in auto accidents,or other types accidents, 63% confirmed that they still experience substantial pain. This study was conducted after taking into account 3,000 patients (aged 18 to 84), who had suffered serious injuries in different types of accident cases.

Different types of injuries included abdominal or chest trauma, broken limbs or fractures, injuries in motor vehicle accidents, slip-trip & fall and some other accidents. Most of the patients reported pains in various parts of body including joints and limbs (44%), Back/Spine (26%), the head injuries (12%) and the neck injuries (7%).

An advocacy group based in Baltimore known as “American Pain Foundation”, reported that financial expenses of chronic pain in the US is estimated to be around $100 billion/year. This includes health care expenses, loss of income and loss of productivity at the workplace. One of the major causes of disability among Americans in Back pain. This study was conducted on patients below 45 years.

If you get injured in an auto accident, then you must contact a New York Accident Injury Lawyer, who will help you receive justice and compensation for your injuries. Your injury will affect your health, wealth as well as your family members and friends. If you have received personal injuries due to negligence or fault of some individual/authority, then you must apply for personal injury compensation.

Your personal injury attorney will fight for your legal rights and will help you overcome the trauma and injuries which you have suffered.



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Paul Justice asked:


In a place like New York City, accidents are prone to happen. With the hustling and bustling of crowded streets, construction sites, and a profuse amount of rushing people, New York City is bound to end up as a breeding ground for accidents waiting to happen. Personal injury is the name given in law that constitutes as any wrong or damage done to another person, property, rights, or reputation. This kind of injury can be brought on in a workplace, car accident, in a faulty repair, in a faulty product, in medical treatment, or even if you slip or fall down on a wet floor. It is important to understand that the victim of such a personal injury does not have to walk away with only an injury. If one is subject to personal injury then one is also subject to receive justice and legal compensation.

Personal injury can involve physical or even psychological damage. However, in order for a New York lawyer to be of service, the personal injury has to be caused by the negligence or unsafe conditions that one’s employer, landlord, doctor, manufacturer, or other person or institution has provided. It is too often that people who have encountered personal injury go unnoticed and are not offered help or justice. New Yorkers have a right to be safe and feel safe in their city. It is important to contact an accident lawyer if that right has been denied. Thousands of people unknowingly pass up the opportunity to receive generous amounts of financial compensation when they are subject to such an injury. Seeking the help of a New York City accident lawyer will help you ensure that all legal technicalities are properly cared for so that you can receive the full amount of reparation.

Some accidents result in the permanent damage of one’s health, physical abilities, or appearance. Figuring out what one should be accurately entitled to can be served by a New York City lawyer. These lawyers make it their business and obligation to guarantee that one’s right to be safe and healthy is held and those who challenge one’s rights are dealt with accordingly. Why should one be left to suffer because of the negligence or ignorance of another? The answer to that is simple. We do not have to suffer anymore if we contact the proper legal advice of a New York City accident Lawyer. It is critical that we do not let these injustices go unknown.

New York City is breeding ground for accidents. Personal injury is any injury that is brought upon by fault of another person, in a workplace, car accident, faulty repair, faulty product, medical treatment, or even if one slips on a wet floor. The injuries that result from such cases occur every day and yet little of these cases are ever reported.



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Far-hadian asked:


 

F. Jason Far-hadian Esq., Principal of Century IP Group (www.centuryip.com) maintains that protecting intellectual property in today’s video game market is necessary to establishing a distinct competitive advantage.



During my recent stay in Seoul Korea, I visited the largest underground entertainment and shopping center in Asia (the COEX Mall), where the Microsoft and Sony corporations have built spacious “game zones,” providing public access to hundreds of game stations and video games for free. Each year the center hosts international competitions where teams of players collectively compete with others online, and before the eyes of large audiences, to win multi-thousand dollar prizes.[1]

Here are a few interesting facts: total sales in the video game industry reached 7.3 billion last year;[2] sales from the online multiplayer games sector by itself is expected to grow to $763 million by 2007;[3] big business in the video game industry is coming from adults, where the average age of a game player is 30;[4] and video games have outsold movie tickets in the United States 10 to 9.[5] Not bad for a business that began as an incidental offspring of the computer software industry.

 

The video game industry, even though still dependent on advancements in the computer software and hardware sectors, has evolved beyond recognition in relation to its humble origins in games such as Pong and Pacman, developed 50 years ago on refrigerator size computers by timid software engineers. Modern video games have intricate storylines, bold colors and a plethora of characters and backdrops. As such, many video games today are written, designed and choreographed by writers, producers, directors and talent with experience in the arts and movie industry before a single line of code is written.

 

For the above reasons, the legal issues related to the protection and enforcement of rights in video game products have become more sophisticated and complex. Luckily, however, various legal means are available to help protect different aspects of a video game product, especially the functional and operational aspects, which may be protected by a patent. Alternatively, certain features may be maintained as trade secrets. Additionally, most characters, scenes, music, dialogues, story lines and source code may be protected under copyright laws as long as each contains original works of authorship.

 

Despite of the availability of the above legal means, there is a surprising and somewhat inexplicable lack of intellectual property protection in the video game industry. This imbalance within the video game industry is cultivating a new and relatively unexploited legal battlefield that is resulting in large judgments against infringers and licensing opportunities for those who have diligently pursued their legal right to obtain and register the respective patents and copyrights.

 

The 1997 case of Alpex Computer Corp. v. Nintendo Co.[6] is among the first cases involving video game patent infringement. In that case, Nintendo was ordered to pay $253 million to Alpex for infringing its patent for a machine configured to play multiple games, in contrast to the older arcade systems that could only play a single game. More recently, in March 2005, the United States Federal court in the Northern District of California found Sony guilty of patent infringement and entered a judgment ordering Sony to pay $84 million to Immersion Corp., which had a patent covering the vibration feature incorporated in the Play Station’s game controller.[7]

 

Accordingly, even simple operational features incorporated in a game may be worthy of patent protection. Such innovations, if properly protected, can potentially provide a distinct advantage to a game developer by way of excluding competitors from using the particular feature in their products.

 

In the realm of copyright protection, certain non-operational but graphical attributes or themes of a video game may be protected by preventing others from altering or modifying such attributes. For example, modding and morphing software are available that allows a player to change the look and feel of a game by adding new levels and characters or otherwise customizing the game based on the player’s preference.

 

The judicial consensus on whether such acts constitute copyright infringement remains unclear.[8] For example, in Microstar, Inc v. FormGen, Inc.,[9] the Court of Appeals for the 9th Circuit held that Micorstar’s act of selling a collection of additional game levels developed for the video game Duke Nukem 3D constituted “derivative work” and infringed the copyrights of the game developer FormGen. Microstar had to enjoin further sales of the product and pay $250,000 in damages. Prior to the Microstar decision, the rights to derivative work had been recognized only in literary works such as novels and films.

 

More recently, in January 2005, Tecmo, Inc., maker of an X-Box game (Dead or Alive Xtreme Beach Volleyball), sued the operators and users of an online bulletin board service “www.ninja-hacker.net” for posting lines of code that made the characters appear nude. The suit was dismissed in May 2005, due to a settlement between the parties. But it left unanswered the question of whether a rightful owner of a video game can legally modify the game in the same manner that a purchaser of a book can underline the text in the book.

 

Due partially to the ambiguities in copyright law, some video game manufacturers have relied on provisions of the Digital Millennium Copyright Act (DMCA) to target companies that distribute modding technologies. In the past, Sony, Microsoft and other companies have successfully gone after distributors of modding chips for violating the provisions of the DMCA that make it unlawful to distribute circumventing technologies such as modding software.

 

It is noteworthy, however, that according to a recent decision of the United States Court of Appeals for the Federal Circuit, the DMCA cannot create new copyright rights, but can only be used to enforce existing rights.[10] So it is no longer clear whether the DMCA will continue to empower video game manufacturers as it did prior to this decision.

 

Regardless of the above uncertainties, the noted progeny of cases confirm that courts recognize the value of intellectual property in video games and will reward the game developers that protect their rights by taking the legal steps to properly register and enforce those rights. In response to the pressing need for legal representation and specialization in the video game industry, certain intellectual property law firms such as the Century IP Group and Morrison & Foerster are further developing their resources to help their clients deal with the legal ramifications of changes in intellectual property law.[11]

 

In today’s competitive video game market, protection of intellectual property is not a luxury, but a necessity for success. A properly registered innovation provides a competitive advantage and further protects the owner from attack by competitors. Therefore, it would be wise for game developers and video game distributors to consult competent legal counsel about how to protect their rights and ideas so that they will have opportunities to both offensively and defensively limit competitor options.

 

F. Jason Far-hadian Esq. concentrates his practice on client counseling, opinions, due diligence and the procurement of patents, copyrights and trademark rights in several technology areas, including electronics, computer software and hardware, telecommunications and wireless devices. He can be reached at jfarhadian@i-p-law.us or visiting www.i-p-law.us. Ms. Jennifer Burcio also contributed to drafting this article.

 

 

[1] “Cashing in on cyber carnage,” James McNair, The Cincinnati Enquirer, September 13, 2005.

[2] “Insider gaming,” Tamara Chuang, The Orange County Register, October 21, 2005.

[3] “Online Game Sites Find Their Lucrative Market Among the Middle-aged”, Kim Peterson, Seattle Times, December 1, 2003. Also see www.gamebattles.com.

[4] Mark D. Rasch, IP Law and Business, July 28, 2005.

[5] “Out of Hollywood, Rising Fascination with Video Games,” Laura M. Holson, New York Times, April 10, 2004.

[6] Alpex Computer Corporation v. Nintendo Company Ltd., 102 F.3d 1214 (Fed. Cir 1997).

[7] Immersion Corp. v. Sony Computer Entertainment America, Inc., 2005 U.S. Dist. LEXIS 4781.

[8] “The Mod Squad”, Mark D. Rasch, IP Law and Business, July 28, 2005.

[9] Microstar v. FormGen, Inc. 154 F.3d 1107 (9th Cir. 1998).

[10] Chamberlain Group, Inc. v. Skylink Technologies, Inc., 2004 CAFC LEXIS 04-1118.

[11] “MOFO Gets its Game On.” Joel Landau, IP Law and Business, August 2, 2004.



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Cyndi Gerken asked:


Initially gaining popularity with elite golfers in the 50s and 60s, golf carts are now making their way into all sorts of unlikely places. Employees in airports, warehouses, movie sets and resorts have all gotten mobile with golf carts over the past decade. Residents of careless communities and tropical islands have been using them on the sly as a cheap way of getting from a to b for years. But perhaps one of the most surprising places to find golf carts these days is on the streets of America.

Deeply contrary to the culture of speed, golf carts and the people who drive them are demanding a piece of the road for themselves - and they’re getting it. In many ways the timing is absolutely right.

Designed to travel at a leisurely pace and run on electricity, golf carts leave a significantly smaller ecological footprint than the average vehicle. The first electric vehicle available to consumers, golf carts are compact and cheap to run, quiet, easy to drive and non-polluting. They’re also painfully slow. Most golf carts top out at speeds of 15 mph with the pedal to the metal. But if you’ve got time to get to where you’re going, what’s the problem?

Many communities have simply connected the dots between their warm weather, a preponderance of golf courses and retirees, and the sheer efficiency of these vehicles by building roads and pathways dedicated just to them. Much like bike lanes in other cities, golf cart lanes are showing up in communities all over Florida, Arizona and California.

According to a new york times article, golf cart sales to individuals have doubled over the last 10 years, a phenomenon largely due to a change in US legislation. Ever since the National Highway Traffic Safety administration allowed “low speed vehicles” such as golf carts, to travel up to 25 mph on roads with speed limits up tp 35 mph in 1998, golf carts have been slowly moving off the golf course and into people’s garages.

Of course, you have to pimp your ride before you’re legal. Road worthy carts have to be outfitted with seat belts, windshields, turn signals and brake lights before they can legally tear up the asphalt.

In 1999, Rancho Mirage CA was one of the first American cities to make Golf Carts part of the municipal scene when the city adopted a program allowing drivers to travel the streets in their carts. The city has designated golf cart lanes and paths that traverse the downtown area and skirt the entrances to some of the most exclusive designer golf courses and country clubs in America. Carrying golf clubs, groceries and purse dogs, residents cruise roads named after the icons that invented this glamorous slow-moving golf life: Bob Hope, Gerald Ford, Ginger Rogers, Dinah Shore, Frank Sinatra. With scarves streaming in the slow desert breeze, this is SoCal at it’s finest.

The city is no stranger to the ways of the golf cart. The Thunderbird Country Club in Rancho Mirage is said to be the first place to ever see a powered vehicle on the fairway. In the 1950s, the likes of Desi Arnez and Bing Crosby were wheeling around the Thunderbird greens in the first 3 wheeled electric golf carts Americans had ever seen. To have the modern cousins of these early vehicles taking over the streets of Rancho Mirage 60 years later is not really surprising. Some would wonder what took them so long.



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