Tattoos: Who Really Owns Them?

Last year, Take-Two Interactive, the parent company of 2K Sports, was sued in a New York federal court for the unauthorized reproduction of tattoo designs featured on the bodies of players in the popular NBA 2K video game series. The plaintiff, Solid Oak Sketches, alleged that it owned copyrights on several tattoo designs on the bodies of LeBron James, Kobe Bryant, Kenyon Martin, DeAndre Jordan, and Eric Bledsoe, and, in an era increasing video game realism, 2K infringed on its rights in creating the players’ likeness. Solid Oak sought damages in excess of $1 million.

According to reports, 2k recently scored the dismissal of a huge chunk of the plaintiff’s claims. Judge Laura Taylor Swain dismissed the plaintiff’s claim for statutory damages under U.S. Copyright law on the grounds that the first of the series of infringements occurred before the works in question were registered with the U.S. Copyright Office. The tattoo designs were apparently registered in 2015, some two years after the release of NBA 2K14. In lieu of statutory damages, the plaintiff can still seek actual damages related to lost income for the tattoos’ appearances.

While the ruling is significant in terms of damages (the plaintiff sought up to $150,000 per infringement), 2K was saved by the timing limitations of copyright law. The bigger legal issue still remains – who really owns a tattoo after it has, in fact, been tattooed onto a body? As fans of tattoos, we recognize that a tattoo is indeed a piece of art. The tattoo artist is an “artist” and the human body is his/her “canvas.” On the other hand, a tattoo differs from a traditional piece of art in one key area. The tattoo is placed onto a canvas that itself has legal rights. When a traditional artist creates a painting, he owns the canvas on which his design comes to life (until it is sold). Obviously, that is not the case with tattoos. While money is exchanged for the design and work, the tattoo artist never owns the human canvas.

In any event, we respect the tattoo artist’s right not to have his work ripped off. We could certainly argue that a tattoo artist should never replicate another artist’s work on an ethical, if not legal, basis. But, this is not the situation in the 2K case. 2K is creating a player’s likeness which necessarily includes tattoos, hairstyles, eyes, height, weight, et cetera. 2K is not seeking to make a profit off of the tattoos themselves any more than Nike is by placing an image of Lebron James on a t-shirt. The tattoos are a part of the player and necessarily come along with him.  If Solid Oak prevails, conceivably every image of Lebron James, Kobe Bryant, et cetera on a t-shirt, poster, or basketball card is a case of copyright infringement.

The truth is that the tattoo designs are out in the public domain. Such is the case when one places a visible tattoo on a public figure whose career necessitates that his arms be exposed. Certainly, Solid Oak knew that its designs where going to be all over when it chose to tattoo the most popular basketball player on the planet.

Kanye West Accused Of Ripping Off 1969 Hungarian Pop Favorite

According to reports, Kanye West, rap star and most recent addition to the Kardashian clan, has been sued for ripping off the beats of a Hungarian composer. The complaint, filed by Hungarian composer Gabor Presser in the U.S. District Court for the Southern District of New York, alleges that West used a portion of his band Omega’s song “Gyöngyhajú lány” (recorded way, way back in 1969) in the song “New Slaves,” released in 2013 on the Yeezus album. The Omega song is allegedly “one of the most beloved pop songs ever in Hungary and across Eastern Europe.” In other words, Omega is basically the Beatles. Or, something like that.

Now, we understand if you have some doubts as to how a rap mogul the likes of Kanye West could come across a 1969 Hungarian pop tune. Whether it be through iTunes or an excursion into the darkest corners of the internet, West allegedly was aware of the song and even asked Presser for permission to use it. According to Presser, West’s lawyer emailed him soon after the marketing of New Slaves began, indicating that West “would like to work out a deal with you as soon as possible.” Presser allegedly was given 24 hours to respond. Presser agreed in principle to the use of the song on the condition that a formal deal follow. However, a formal agreement allegedly never came to fruition. West allegedly sent Prosser $10,000 as an advance for the audio track, but Prosser never cashed the check. Now, he is seeking $2.5 million in damages.

We here at Abnormal Use have no idea whether the allegations of the suit have any merit. We have listened to the two tracks (available here) and, admittedly, can at least hear some resemblance. West has apparently at least acknowledged some resemblance and copyright issues by virtue of the alleged offer to work out a deal. If true, what is curious is whether West intentionally borrowed from the 1969 Hungarian track or created “New Slaves” independently, discovered the resemblance, and tried to hedge off any issues, knowing that musicians are no strangers to copyright lawsuits. Presser apparently thinks it is the former more so than the latter. He alleges that West “knowingly and intentionally misappropriated plaintiff’s composition,” and “after his theft was discovered, [West] refused to deal fairly with plaintiff.”

Is this a case of coincidence or a musician digging through the depths of the music library of Eastern Europe to make music? Take a lesson to the songs, and we will let you be the judge.

Grand Theft Auto Can’t Shake Lindsay Lohan Suit

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Back in 2014, actress Lindsay Lohan filed suit against Take Two Interactive, the makers of the popular Grand Theft Auto V video game, alleging that the game improperly used her likeness. As a refresher, Grand Theft Auto features a character named “Lacey Jones” who Lohan alleges is her doppelganger in more ways than one. In the game, the character eludes paparazzi, references the Lohan movie Mean Girls, mentions the West Hollywood hotel where Lohan once lived, and allegedly looks like Lohan. Such similarities Lohan alleges are a violation of her rights under New York civil rights laws. Take-Two moved to dismiss the suit for failure to state a claim, calling the suit “legally meritless” and requesting sanctions due to the obvious publicity grab.

So would this matter turn out just like the actress’s prior unsuccessful lawsuits against Pitbull and E-Trade? Well, no. Not yet, anyway. Last week, New York Supreme Court judge Joan Kennedy denied Take-Two’s motion to dismiss and ordered the company to file an answer to the complaint. Now, we get to look forward to TMZ reports on the discovery process some two years after the suit was filed.

We would like to congratulate Ms. Lohan and her legal team for making it past the treacherous pleading stage.  \But, before Hollywood makes too big a deal out of this, let’s take notice of what this order means. Construing the allegations as true and viewing them in the light most favorable to her, Lohan sufficiently pleaded a cause of action for violation of the civil rights law. The Court has not issued a finding that any of the allegations have merit, only that the matter is deserving of being further litigated. With Lohan’s legal track record, we suppose that may be reason to celebrate.

If this case was the publicity ploy Take-Two suggested, it doesn’t appear to be too successful. We have played Grand Theft Auto many times over the last couple years, but we completely forgot about the lawsuit. We have also come across Lacey Jones plenty of times during the course of our gaming and, surprisingly, not once did we think about Lohan. Jones is way too entertaining.

New Year, New Apple Lawsuit

With the new year comes yet another Apple lawsuit. This one has nothing to do with patents, Samsung, reception issues, or any of the other plethora of things Apple has litigated in the past. This suit concerns the functionality of the iOS 9 software – not on those new iPhone 6 or 6s’s, but on the ancient (by technology standards) iPhone 4s. According to a report from Tech Times, Plaintiff Chaim Lerman filed a class action suit in New York, alleging that the iOS 9 software upgrade puts a damper on the iPhone 4s experience. Specifically, the suit alleges:

The update significantly slowed down their iPhones and interfered with the normal usage of the device, leaving Plaintiff with a difficult choice: use a slow and buggy device that disrupts everyday life or spend hundreds of dollars to buy a new phone.  . . . Apple explicitly represented to the public that iOS 9 is compatible with and supports the iPhone 4s. And Apple failed to warn iPhone 4s owners that the update may or will interfere with the device’s performance.

Moreover, the plaintiffs allege that Apple is “aware and has been aware” that the iPhone 4s is negatively affected by the software update. The disgruntled iPhone 4s users seek $5 million in damages.

We here at Abnormal Use are on the fence about this lawsuit. On the one hand, we can sympathize with the plaintiffs’ fateful plight. We, too, hate when we have a device which works to our liking and a company pushes a software update that seems to adversely affect its performance. It is even worse when the update is forced and irrevocable. Like these plaintiffs, we have spoken ill about more than one device (this isn’t limited to an Apple or phone problem) as a result.

While we can sympathize with the plaintiffs on the performance issue, the lawsuit violates the pig rule. Rather than stop at a point which can gather support, the suit goes on to argue that because of the iOS ecosystem, users are far more likely to buy a new iPhone than switch to an Android phone so they don’t have to reinvest in nontransferable content such as apps. In other words, Apple has knowingly slowed down their phones, forcing them to buy new ones while making it difficult to switch to the competition. So, Apple should be found liable by not making it easier to throw out their product and jump onto the Android bandwagon? We are thinking that argument is just not going to fly.

The real issue here is that the plaintiffs are a class of iPhone 4s users. Apple released the 4s way, way back in October 2011. In terms of technology in the smartphone industry, it might as well have been released in 1911. As we stated back in 2013 regarding another Apple lawsuit:

Apple releases new iPhone models every 6 months, making you feel that your barely used phone is outdated. Apple doesn’t need to tamper with your phone to get you to buy a new one. They already use enough trickery in the marketplace.

At a certain point, it has to be time for an upgrade, right?

Facebook Lacks Standing To Challenge Subpoenas For User Info, Says New York Appellate Court

Here we go again. Another privacy-related Facebook legal issue has arisen.

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In a disability fraud case in New York, in which “more than 130 police officers and other public workers in New York City whose disability claims allegedly conflicted with information about life activities on their Facebook accounts,” Facebook has reportedly been told by a New York appellate court that it lacks standing to challenge subpoenas for the users’ personal information. Although Facebook has produced the information as ordered, it does not plan to give up on the issue. In fact, according to Bloomberg, Facebook released the following statement:

We continue to believe that overly broad search warrants—granting the government the ability to keep hundreds of people’s account information indefinitely—are unconstitutional and raise important concerns about the privacy of people’s online information.

Apparently, Facebook has not decided whether to appeal the ruling further.

How much information does Facebook maintain on its users, anyway?  According to a Forbes article from several years ago, the answer is A LOT. The personal data stored by Facebook includes everything from “every person who has ever poked you” to “a list of the machines that [the user] has used Facebook from, how often [the user] has signed in from the machine, as well as a list of all the other Facebookers who have logged in on that machine.” An exemplar full report discussed by the Forbes article was over 800 pages long.

If you are curious about how to download all of your Facebook data, Facebook tells you how to do so here:

Download facebook data

This information, of course, can be helpful to lawyers when fashioning interrogatories and requests for production of documents pertaining to Facebook data. As you may recall, we at Abnormal Use have covered many Facebook-related legal topics in the past, which can be accessed here.

No Monkey Business . . . Court Rules Chimps Don’t Have Human Rights

A New York Judge recently heard a case brought by an activist claiming that chimpanzees should be afforded the same legal rights as humans. Although Judge Barbara Jaffe ruled that they don’t possess any such rights, the opinion was a strange one, and it seems that she was initially inclined to grant them such rights but felt constrained by some pesky legal precedent to the contrary.

The case involved two research chimpanzees named Hercules and Leo. Lawyers for the Nonhuman Rights Project alleged that the chimps were entitled to rights that the legal system has previously recognized as applying only to humans. The lawyers asked for a writ of habeas corpus authorizing the transfer of the animals from captivity at a state university to an animal sanctuary in Florida. They argued that “because chimpanzees possess fundamental attributes of personhood in that they are demonstrably autonomous, self-aware, and self-determining and otherwise are very much like humans, ‘justice demands’ that they be granted fundamental rights of liberty and equality afforded to humans.”

Such a grant of rights would have marked a first for a court in the United States. Ultimately, the judge concluded that she was bound by an earlier ruling by a New York appellate court that held that chimps are not entitled to legal person status because of their inability to take on duties or responsibilities. However, Judge Jaffe suggested that the legal system was evolving on the issue just as it did in the debate over gay marriage.  In so doing, she cited a handful of cases granting narrowly expanded rights to animals and stated that this was ultimately question of public policy.

Private Message or Process Server – Service Through Facebook?

Revolutions have started through the use of it.

Marriages have started through the use of it.

Opinions (informed and uninformed) are shared on it.

So why should a lawsuit not start through its use?

What is it? Why Facebook and potentially other social media platforms, of course. In a recent divorce case, Baidoo v. Blood-Dzraku (2015 NY Slip Op 25096, Mar. 27, 2015), the New York County Supreme Court permitted a wife to serve her husband solely with a summons via private message to the husband’s account on Facebook.  While recognizing that Facebook is not a statutorily permitted method of service, the Court asked and answered several relevant questions in making its way to its conclusion that service in this fashion was proper.

The Court first asked whether the standard form of personal service was at all possible. It reasoned that since the couple had never resided together, the last known address the wife had for the husband was from an apartment he left in 2011, and the husband told her he had no fixed address or employment, it was an impossibility to personally serve the husband.

The Court next had the wife show that statutorily permissible “substitute service” of serving on someone of suitable age and discretion or through “nail and mail” would also be unavailable under the circumstances.  The Court quickly rejected the possibility of substitute service since such service is premised upon knowledge of the husband’s actual place of business or home address.

The Court further insisted that the wife demonstrate that sending the summons through Facebook would be a way to reasonably expect he would receive actual notice. The Court noted that whether the method used would comport with due process was the “ultimately determinative” factor.

To ensure that the Court’s order was constitutionally reasonable, the Court required the wife to submit a supplemental affidavit verifying the husband’s Facebook account, including copies of exchanges between the husband and wife on Facebook and the identification of husband in certain photographs. The wife’s affidavit also showed that husband regularly logged into the account.  Finally, the Court determined that service by publication would be useless and costly in these circumstances, finding that publication was almost guaranteed not to provide husband with notice of the action.

The Court concluded that the wife’s attorney would log into her account, message the husband by first identifying himself, and either include an image of the summons or a hyperlink to the summons.  Additionally, the attorney would have to repeat the message once each week for three weeks or until husband acknowledged service, and after the initial transmittal, the wife and the attorney would have to call and text message the husband to inform him of the Facebook message.

Baidoo is not the only case to contemplate service by Facebook.  But could service by Facebook extend outside of cases for divorce or between individuals?

Just two years before Baidoo, the Federal Trade Commission, in alleging “that the defendants operated a scheme that tricked American consumers into spending money to fix non-existent problems with their computers,” requested leave to serve five India-based companies by means of both email and Facebook.  F.T.C. v. PCCare247 Inc., No. 12 CIV. 7189 PAE (S.D.N.Y. Mar. 7, 2013).  While the Court noted that Facebook and email were not within the scope of Article 10 of the Hague Convention on Service, it also noted that India had not objected to the use of Facebook and email as a means of service such that the Court could authorize service by those means. In turn, the Court found that the FTC’s proposal to serve defendants by both email and Facebook satisfied due process, stating that “[w]here defendants run an online business, communicate with customers via email, and advertise their business on their Facebook pages, service by email and Facebook together presents a means highly likely to reach defendants.” This holding was followed several months later in F.T.C. v. Pecon Software Ltd., No. 12 CIV. 7186 PAE (S.D.N.Y. Aug. 7, 2013).

Given these cases and the fact that the cost of publication is increasing while the likelihood of notice by publication is decreasing, service only by Facebook on even corporate defendants could be a thing of the relatively short-term future. However, given the effort that must be exerted before a court will permit such service, it will likely be a long time before service by Facebook on either individual or corporate defendants is something that is commonplace. While there may be a shot for Facebook, a search of service by other social media platforms, including Twitter, Tumblr, Instagram, and Snapchat, has not produced any results to date.

Hall and Oates Haulin’ Granola Company to Court

They say imitation is the best form of flattery, but rock legends Daryl Hall and John Oates may disagree. Here’s the long and short of it: Brooklyn-based granola company Early Bird Foods named a line of granola products “Haulin’ Oats.” Hall and Oates’ response: “No Can Do.” Hall and Oates were none too pleased, as reported by Rolling Stone magazine. According to the complaint filed in New York, not only does the rock duo assert that the Early Bird is attempting to “trade off of the fame and notoriety associated with the artists,” the duo also contends that its company, Whole Oats Enterprises, owns a federal trademark registration for the mark “Haulin’ Oats.” The band contends Early Bird’s use of the mark will confuse consumers and lead them to believe Early Bird’s products are approved by the band.

Hall and Oates certainly doesn’t think “It’s A Laugh[ing],” matter, asserting both common law and statutory trademark causes of action. The duo is seeking a permanent injunction against Early Bird preventing the company from using “Haulin’ Oates” or similar marks, compensatory damages, and all profits, gains and advantages derived by Early Bird out of its “Haulin’ Oates” product line, among other relief.

One final note on this new lawsuit. It seems Early Bird and its founder Nekisia Davis are going to ride the publicity wave for the time being, lawsuit be damned. According to NBC News, Early Bird tweeted about the suit and offered a discount on Haulin’ Oats for weekend purchases. The coupon code? SAYITISNTSO. Pretty cheeky response if you ask us here at Abnormal Use. How this lawsuit will resolve is, of course, unknown. However, in the meantime, Davis may find herself as a “Rich Girl,” haulin’ her products to countries near and far.

(Hat Tip: Lowering The Bar).

Rick Springfield (And His Rear) Not Liable In New York Personal Injury Suit

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At long last, we have some resolution to the now infamous Rick Springfield butt-injury case.  Last week, a jury returned a verdict in favor of Springfield, finding that his hindquarters were not responsible for the injuries allegedly sustained by 45-year old Vicki Colcagno way, way back in 2004.  Colcagno alleged that during a concert at the New York State fair, Springfield was jostled by the audience and lost his balance, causing his rear to strike her.  The butt-hit allegedly knocked Colcagno to the ground where she struck her head, causing a traumatic brain injury.  Exhibit A (pictured above) of Colcagno’s case was a picture of Springfield’s rear end taken just moments before the alleged incident.  After all the evidence was heard, the jury took 61 minutes to render a defense verdict.

The location of the allegedly dangerous body part aside, we here at Abnormal Use are not surprised by the jury verdict.  Colcagno had no witnesses from the concert to corroborate her story.  She had no video evidence (aside from the aforementioned pre-accident butt shot).  After the alleged incident, she remained at the concert and continued taking fan photos of Springfield.  She also attended a Cyndi Lauper concert a week after the Springfield incident. (Lauper kept her body parts on stage).  Moreover, the jury probably didn’t like hearing how Colcagno asked Springfield for concert tickets during a 2010 deposition.

In any event, we applaud Springfield and his legal team for following this case through to trial.  Settlement would have undoubtedly been the path of least resistance.  The life of an 80’s pop star is certainly busy and keeping up with litigation was probably not high on his list.  But, rather than settle, Springfield boldly stuck to his position that he did nothing wrong. Now, if Springfield can channel the momentum of this trial victory into a new “Jessie’s Girl,” we can all be winners.

The Coming Ebola Litigation?

Ever since the United States experienced its first Ebola death, uncertainty looms over the proper way to contain the virus and the appropriate measures that governments should take to prevent an outbreak.  Three states, New Jersey, New York and Illinois, have imposed quarantines on anyone arriving with a “high risk” of having contracted Ebola in Sierra Leone, Liberia and Guinea.  Kaci Hickox, a nurse who volunteered to help with Ebola patients in Sierra Leone, was quarantined upon her return to the U.S.  According to Hickox, she exhibited no symptoms of the disease and found herself to be otherwise completely healthy.  The White House has expressed concerns over the quarantine policies, arguing that the quarantine policies are not grounded in science and reiterating that Ebola is difficult to catch.

We may have the opportunity to see this saga play out in the courtroom, as Hickox has indicated that she plans to file suit on the basis that the quarantine violated her Constitutional rights.  According to Hickox’s lawyer: “She’s fine. She’s not sick . . . . She went and did a magnanimous thing and deserves to be treated with respect and dignity, not put in isolation because some political leaders decided it looks good to do that.” It will be interesting to see how this plays out if Hickox does file suit.  Regardless of the outcome, the legal industry should be prepared to deal with Ebola-related issues.  International law firm Reed Smith, has announced the formation of a Global Ebola Task Force, and more firms will likely follow suit.

On a related note, an interesting article examining medical malpractice-based Ebola lawsuits against the backdrop of Texas “tort reform” litigation is located here.