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Volume 1 - Spring 2000
Truth in Advertising: A
Look at One Right of Publicity Case Gone Terribly
Wrong
Edwin F.
McPherson
This article is a critique of the distortion of the
right of publicity that has allowed litigious public
figures to make money from being the center of
seemingly innocuous and valid public information.
McPherson uses Priscilla Presley v. Third Coast
Entertainment, Los Angeles Superior Court Case No.
SC 049 628, to demonstrate not only the frivolity of
the suits that arise from these claims, but more
importantly, the infringement of the constitutional
right to free speech that they impose.
Third Coast Entertainment fell prey to this
exploitation of the right of publicity law when it
was sued for announcing that Presley would be
serving as a consultant on an upcoming movie about
her life. Although Third Coast’s statement was true,
and despite filing a SLAPP Motion suit which is
specifically intended to dispose of such suits,
Third Coast ended up paying $1.6 Million in damages
to Presley.
McPherson takes a closer look at this case to
illustrate the inequities and to discuss the
possible ramifications of the suggestion that “any
use of another’s person name, whether or not the
name is being used in a true statement, irrespective
of whether or not the story is newsworthy and about
a public figure, whether or not it is used to
endorse a product...is actionable.”
Practical Considerations
for Attorneys Assisting Foreign Athletes to Play
Professional Sports in the United States
Michael J. O'Connor, Jr.
This article analyzes legal issues that affect
foreign athletes whom want to compete in the United
States on the professional level and the attorneys
that assist them. The three areas that affect
foreign athletes are contracts, immigration, and
taxation.
The location at which the contract is drafted may
control the law that governs the specific contract,
and it is often advantageous to include a provision
governing the choice of law within the contract
involved.
Under the present provisions of the Immigration and
Nationality Act, foreign athletes must demonstrate
“extraordinary ability,” or “a level of experience
indicating that the person is one of the small
percentages who have risen to the top of the field
of endeavor.” This provision applies to foreign
athletes applying for temporary admission to the
U.S. under the O and P categories.
For tax purposes, an attorney assisting a foreign
athlete should refer to the bilateral treaty in
place between the U.S. and the foreign athlete’s
nation of citizenship. Nonresident aliens are
usually taxed at differing levels on income that is
connected with the conduct with a U.S. trade or
business, or income from U.S. sources that is not
effectively connected with a trade or business in
the U.S.
Trade Dress for Success:
Fashion Designs as Distinctive Product
Configurations
Inga Munsinger
Fashion designers seeking injunctions against
lower-priced imitations or “knock-offs” have met
with limited legal success. Fashion is difficult to
place within the context of intellectual property
because fashion as a concept is difficult to define.
Copyrights and design patents fail to provide
effective protection for creative expression in
fashion. Although design patents are available for
fashion designers, they offer limited protection for
fashion designs because they are slow and costly to
obtain and difficult to defend as valid.
Courts treating fashion designs as distinctive
product configurations have applied the law of trade
dress to afford designers with some protection from
knock-offs. Trade dress is the totality of the
elements in which a product or service is packaged
or presented. The elements of a case of trade dress
infringement are nonfunctionality, likelihood of
confusion, and distinctiveness.
There are two types of distinctiveness: inherent
distinctiveness and secondary meaning or acquired
distinctiveness. Although the Supreme Court adopted
the inherent distinctiveness Abercrombie spectrum
standard, the current standards for defining the
distinctiveness of product design trade dress are
inadequate to protect designers from knock-offs.
Various courts have adopted different standards for
assessing inherent distinctiveness in product
configurations.
Courts need to develop a clear legal standard for
product configuration infringement that allows more
dispositions at the preliminary injunction stage.
This legal standard should not include secondary
meaning since it is too onerous a burden for
designers to undertake; secondary meaning is a
fact-intensive inquiry that requires proof such as
consumer surveys and is costly and time-consuming.
The Digital Transmission
Compulsory License: Is It in Tune with the Internet?
Krystian G. Koper
Full Court Pressure: A
Look at the 1998-1999 National Basketball
Association Lockout
Daniel Ringold
For four decades, the average salary of a
professional basketball player rapidly outpaced
those of society at large. Following the 1997-1998
season, the National Basketball Association’s
ownership sought to impose a hard salary cap on
player salaries during negotiations for a new
collective bargaining agreement. As the NBA Players
Association stood firm in demanding either a
continuation of the current soft cap system or the
removal of the salary cap altogether, the league
exercised its rights to lockout the players on July
1, 1998.
Ringold examines the history of the relationship
between the NBA’s owners and players as a
development of the legal options and strategies
available to both owners and players throughout the
lockout. The author then details the events leading
to the resolution of the lockout, and concludes by
evaluating the results of the new collective
bargaining agreement.
Entertainment Contracts
with Minors in Texas
Sinead Clifford
Texas lacks legislation that specifically covers a
minor’s contractual capacity within the
entertainment industry. As the entertainment
industry grows in Texas, the need for legislation to
cover contractual capacity of minors will grow.
Entertainment companies are leery of contracting
with minors in Texas, since under Texas law, minors
may disaffirm any contract, save those for
necessities.
Under Texas case law, the issue of a minor’s
contractual capacity with an entertainment entity
has been analyzed using a tripartite factor
approach. Fairness of compensation according to
industry standards, protection of the minor’s
earnings for the minor’s future use, and possibility
of exploitation of the minor’s person in terms of
safe working conditions and education continuity are
all factors that Texas courts analyze when
considering whether to allow the guardian to enter
into entertainment contracts on the minor’s behalf.
Other jurisdictions, such as California and New
York, have adopted legislation to limit the right of
minors to disaffirm contracts. In California, the
legislature gave courts the ability to approve
contracts made with minors. The California courts
have the power to make the parties establish a trust
fund or savings plan as a prerequisite to the court
granting approval of the contract. New York has
similar legislation for entertainment contracts with
minors. In New York, judicial approval of
entertainment contracts with minors is also
required. New York also requires entertainment
companies to secure permits for minors from the
mayor or any other chief executive of the town where
the work will take place. Similar to California, New
York allows courts to decide whether to set aside up
to one-half of the minor’s net earnings for the
minor’s future use. New York limits the duration of
entertainment contracts with minors to three years
in order to protect against the risk of earnings
exploitation by the entertainment companies.
Finally, New York gives the courts discretion to
revoke court approval if the minor’s well-being is
severely at risk.
Texas can adopt aspects of the New York and
California models in order to strike the best
balance between protecting the child’s rights and
attracting more entertainment business by limiting
minor’s rights to disaffirm entertainment contracts.
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